AJISS 29-3 Article 6 The Position of The Niqab (The Face Veil) Asmi John Wood

The Position of the Niqab (the Face Veil)
in Australia under Australian

and Islamic Laws
Asmi John Wood

Abstract
The Sayed Case in the District Court of Western Australia

required the court to decide on the issue of a witness in
niqab. The defendant, in this case a Muslim man, said that a
prosecution witness wearing niqab created a disadvantage for
the defense and wanted her to provide her testimony without
a face veil. While this is a narrow characterization of the issue
for the court, the case sparked much controversy including
calls for the government to regulate forms of Muslim women’s
dress as was the case in France and Belgium. At present, while
many Muslim women in Australia do not cover either their
hair or face, the common law and statute do not prescribe
or proscribe any form of dress for Australians.
The call by some Muslims, such as in the Sayed Case,
for the imposition of limits on Muslim dress, employs the
scholarship of foreign Muslims who they support. This paper
calls for the rejection of such prescriptive formulations of both
Australian law and the local expressions of Islamic law. Others
such as Katherine Bullock, an Australia Muslim academic,
support women’s choice in the broadest terms ‒ and this paper
supports the primary sources of Islam, the traditional Islamic
scholarship, and is deeply acculurated in the Australian
ethic of personality autonomy and choice for all, including
________________________________________________________________________
Asmi J. Wood is a barrister and solicitor in the Australian Capital Territory. He teaches in
the Australian National University Law Program. His PhD was on comparative aspects of
the use of force between the Sharīʻah and international law.
Wood: The Position of the Niqab (the Face Veil) in Australia 107
Muslims women. While they are both independent works,

both Bullock’s work and the common law as articulated
by the judge in the Sayed Case are strongly supportive of
allowing women the choice of covering themselves. This
paper contends that Australian common law, as confirmed
in the Sayed Case, is reflective of a broader Muslim
consensus and should be retained as the status quo.
Introduction
Public expressions of faith or culture, particularly with respect to recently
arrived immigrant groups can raise disquiet in some segments of Australian
society. Novel cultural issues with which Australians have had to recently
contend include female genital mutilation among some immigrant Afri-
can and Asian groups, forced marriages among West Asians, and unusual
dress items such as saris and head and face covers. Since the September
11 attacks, head covers of Muslim women also appear to have increasingly
touched on the sensitivities of a broader range of Australians.
Although I focus ultimately on Muslim women’s face cover (the
niqab), it necessarily touches upon the headscarf (the hijab) concepts that
are often conflated in the debate on the niqab in the public space. I exam-
ine the legal position on the wearing of a head covering and in some cases
including a face cover in Australia. Moroccan scholar Fatema Mernissi’s
view, that many traditional Muslim women will abandon the veil when
given the opportunity, appears to be borne out by the practice of many
immigrant Muslim women.1 The possible reason for this phenomenon is
that many first generation immigrants in Australia hail from oppressive
societies that fit within Mernissi’s social framework; they are usually more
focused on economic betterment and, therefore, take much longer to be-
come comfortable with Australia’s civil and political freedoms, including
the right to manifest symbols of one’s faith in public.
On the other hand, Mernisi’s position on the head cover ‒ and cog-
nizant that it is quite unlikely that she would have consciously contem-
plated Australian conditions in her works ‒ appears to be unnecessarily
self-limiting in the Australian context. The first concern in this regard is
that deference in the West to Mernissi’s views on head cover results in
Australian Muslim women converts by default being influenced by a posi-
tion formulated in the main to address very different historical, legal, and
social circumstances. Given the difficulties of information overflow in the
initial stages of conversion, this deference is unhelpful and can in cases
deny Muslim converts the option of an informed choice on what is at least
an important symbolic issue.
108 The American Journal of Islamic Social Sciences 29:3
The crucial longer-term disadvantage is that because Muslim immi-

grants and their families still make up, and in the foreseeable future are
likely to make up the vast majority of the Australian Muslim community
their majoritarian views are largely, although not exclusively informed by
economics rather than by theology or law – a great disservice because Is-
lam is directly connected to law but only incidentally with respect to a cap-
italist economic system.2 Further, through this majoritarian push, Mernisi’s
views ‒ and through no fault of hers ‒ but through the sometimes poorly
informed nature of community debate, appears disproportionately to influ-
ence other Australians interested in Muslim women’s issues.
Thus, the current position in Australia ‒ that is, that Muslim women
appear largely not to cover except on significant religious events, which
while it accords with Mernissi’s position, is not entirely in accordance with
Islamic law.
In the examination of the Sharīʻah vis-à-vis Australian law, and as
shown below, the relevant aspects of the Sharīʻah can lawfully be exam-
ined anew‒ and therefore, should, free of many of the oppressive condi-
tions influencing Mernissi’s thesis. This examination also attempts to bal-
ance the debate dominated by majoritarian issues and interests. Although
the position of Katherine Bullock, an Australian scholar, on the head cover
is not directed at Australians; nevertheless, her work could nonetheless
reasonably be said to contemplate such an audience ‒ and is compared
vis-à-vis to both the Sharīʻah status quo and, importantly, to its practical
application under Australian law.
I propose that Bullock’s view that hijab has a firm Islamic legal basis
(that is, its adoption is advocated by the majority of Islamic scholars and
many Muslim women globally); also the Australian community must re-
think its position particularly with respect to its contemporary legitimacy
and utility (Bullock’s position), which is the better presumptive position
for the development of Australian custom on this personal law matter.
Bullock’s position is diametrically opposite to that of Mernissi, at least
on the issue of the desirability of hijab for women. Bullock’s position,
however, is truer to the primary sources of Islamic law, the Qur’ān and the
Sunnah and, in the Sharīʻah tradition, respects the development of the issue
based in the jurisprudence, law, and precedent.
Broadly speaking, there are at present no legal sanctions for adherence
or breach of any purely religious dress code obligations in Australia for
Muslims or members of any other faith. There are, however, some practi-
cal limitations that I will discuss. I argue for maintaining the legal status
quo on this issue and suggest that legal sanctions in Australia should not
be contemplated for niqab, hijab, burqa, chādor, or other forms of Muslim
women’s dress.3 This general Anglophone position can be contrasted with

say the position in Belgium or France where wearing the niqab (le viole
intégrale) in public places is against the law and is a measure that is sup-
ported by the majority in those countries.4 Further, even the use by Muslim
women of the hijab (le foulard) in public places is also is restricted by law.5
In addition to legal sanctions, Muslim women may also face social
sanctions (including by some Muslims) for the individual adherence to or
breach of Islamic social norms. Although very uncommon, women’s hijabs
have purportedly been pulled off women on the streets of Sydney.6 Such
behavior is reprehensible and is considered unacceptable by the majority
of Australians. Consequently, this ugly practice is very uncommon and is
limited to particular segments of society, such as among the far right or
even Nazis who are on the whole quite hostile to non-English social norms,
especially against such highly visible symbols.7
Without minimizing their human impact and effect, people with anti-
social behavior should be addressed through education and civil sanctions
rather than the blunt instrument of the criminal law ‒ however, they should
be cognizant that international law requires the enactment of domestic laws
against discriminatory behavior.8 In general however, in Australia, Muslim
women’s dress is subject to a degree of public attention that far exceeds its
actual legal importance or the breadth of such practice.
I attempt to identify and influence emerging Islamic norms on Muslim
head covers in Australia. I also approach the niqab issue from an Islamic
law, international law, common-law, and an Australian social perspective
in order to encourage the community to develop an Australian Sharīʻah,
and a legal and community consensus position on Islamic dress – and im-
portantly to do so in concert with all these laws.
Based on the practice of a segment of Australian Muslim women, I ex-
amine the legal social implications for Australian Muslim women wearing
niqab and, in instances, the hijab. Some of the evidence used is anecdotal.
The reference to anecdotal evidence is unfortunate, but the collection of
statistics based on religious affiliation is traditionally difficult in Australia
– but is nonetheless an important gap in information that must be correctly
and lawfully collected, collated, and analyzed as an urgent task.9
The broader call in this paper is for the development of Islamic law
in Australia, to encourage the development of a uniquely Muslim identity,
and to prevent the almost total assimilation of Muslims ‒ as has happened
in the past in Australia to the Makassars, Afghans, Syrians, and other deni-
zens who have “disappeared,” but who have left tantalizing traces of their
lives.10 I also seek more broadly to promote and encourage the develop-
ment and crystallization through local consensus of Sharīʻah personal law

‒ legal opinions that will be available to all Australians. And for reasons
that will become clear, this development will contribute positively to the
development of the law as it affects Muslims, thereby helping to solve the
growing volume of litigation between Muslims.
Methodology
While the examination of a religious law could be expected to follow a
methodology of natural law, these terms are avoided because an impartial
observer would likely categorize the Sharīʻah interpretative methodology
as positivist ‒ or perhaps in Tom Campbell’s terminology, ethical positiv-
ist.11 Cognizant of this caveat, I employ comparative legal analysis as the
general methodology, principally applying international law as contextu-
ally suitable and as viewed through the lens of Australian common law
and the Sharīʻah,12 using a positivist approach.13 An important caveat in
this process of comparative legal analysis, however, is that there is not a
shared or common understanding between the common law and Sharīʻah
legal traditions of the many legal concepts employed, and one thus has to
be careful when drawing conclusions based on translated terminologies
and concepts.
Enforcement of Sharīʻah personal law obligations is not lawful in Aus-
tralia and, therefore, this jurisdictional issue is not considered in any detail.
Generally however, even when those in power do have the mandate to en-
force the Sharīʻah, many matters of “inner faith” necessarily remain non-
justifiable unless superficially judged by external trappings only. A major
problem with Islamic dress generally is that it promotes a particular kind of
ostentatious religiosity that is despised in Australia, and the development
of the Sharīʻah in Australia should pay particular attention to these cultural
nuances.
Sharīʻah Methodology
There is general consensus that the independent Sharīʻah sources,14 the
Qur’ān and the Sunnah, will be interpreted according to its most obvious
meaning,15 and this is the interpretative process I have applied in this pa-
per. For an obligation to be considered binding under Islamic law, it must
either be explicitly mandated (fard) or an act explicitly prohibited (haram)
in the independent sources ‒ or, alternatively, under the dependent sources,
as developed by jurists and validated over time by Muslim consensus.16
All other acts fall between these two ends of the spectrum. While these
acts may be viewed variously under the Sharīʻah as meritorious or other-
wise, adverse temporal17 legal consequences do not usually attach for their
neglect.18
An alternative source of general Sharīʻah law, although not binding
in the first instance, is preexisting custom.19 However, only custom that
is “just” is acceptable.20 Such just laws generally continued undisturbed
and, in time, through debate and consensus were often recast as “Islamic
norms.” The variety of Islamic cultures around the world is a manifestation
of the different social evolution of Muslim communities. This process is
yet to occur in a systematic and formal manner in Australia, and globaliza-
tion should not be allowed to subvert this wonderful and civilizing process.
Disagreement (ikhtilāf) is not prohibited except on certain fundamen-
tal matters (uṣūl).21 There is no question that what is universally accepted
as uṣūl is binding on all Muslims. Broadly speaking, uṣūl are matters on
which the Qur’ān or the Sunnah, the practice of the Prophet (ṢAAS), are
clear or where legal provisions are based on evidence that is certain. An
overarching principle in this regard is that obligations (fard) based on the
independent sources (qat’i) are classified as “certain,” while those obliga-
tions (wājib) based on the dependent sources are classified as probably
correct (zann).22
Diversity is actively encouraged in Islam as in perhaps no other faith
or ideology. The Prophet said: “Difference of opinion is a boon to my com-
munity,”23 also that “there are as many paths to God as there are seekers
after the truth,”24 and he actively encouraged a diversity of views.25
As Islam moved out of the Arabian Peninsula, there was a pressing
need to develop new law. The process of developing laws for novel situa-
tions or rules for evolving situations is called ijtihad.26 However, regulat-
ing ijtihad became vital as it can be the subject of extreme individualism
and consequently created the need for stable methodologies to help the
crystallization of consensus.27 These rules and methodologies, now codi-
fied in the various schools of thought (maadahib), have served the Mus-
lims well for over a millennium and should not, therefore, be discarded
without extensive debate and a strong consensus.
A manifestation of contemporary acceptance of such difference (al-
though perhaps not entirely harmonious) is the simultaneous participation
of the followers of the various Islamic legal schools ‒ mainly Sunni and
Shīʻah, but also including less mainstream groups such as the Alawi28 ‒ at
the hajj or the umra (the minor pilgrimage). Another example is the coex-
istence of orthodoxy, the exact meaning of which changed over time and
because of some heterodoxies of the time.29
Legal interpretation generally is not a straightforward process if car-
ried out systematically, methodically, and transparently, and this is particu-
larly so under the Sharīʻah because there has been a substantial accretion
of Islamic legal material over the past 1433 years.30 Clearly, not all this law
or jurisprudence is relevant today and could reasonably be bypassed, but
where appropriate, however, for standing presumptions – and in this case,
that all but the face and hands of a Muslim women should be covered in
public, should first lawfully be rebutted, and done so in accordance with
proper legal methodology. Note also that presumptions can lawfully be
suspended for legal necessity, as is proposed was the case with Mernissi’s
parents and grandparents’ generations (that being colonized created a situ-
ation of necessity in that women were unveiled through the laws and cus-
toms of the colonizers).
While the term Islamist31 is inexact, it is sometimes used synonymous-
ly with the terms Salifi or Wahhabi to describe Muslims32 who are per-
ceived somehow as being “fundamentalist” and because they can be more
vocal, their views are better heard and are thus a useful point of reference.
A contemporary “Islamist view” is that Islamic jurisprudence must some-
how be purified, making it free of all “extraneous influences,”33 which in
cases could require ignoring precedent and the jurisprudence – and for this
reason, is a view not endorsed here. In this context, some of the law-mak-
ing process of the twentieth century have been described as purely “goal
oriented.”34
Less instrumentally, conditions such as colonial occupation of Muslim
lands arguably triggered necessity as a legal basis for abandoning Islamic
traditions and values in favor of the secular, as perhaps was the case with
Mernissi’s analysis. If legal necessity is invoked, then such need must be
argued and established separately in each jurisdiction.
With respect to women’s issues, Ayesha Imam notes rightly that there
is a desire on the part of men in many countries to “control women and
their sexuality,”35 including through law. While not condoning this phe-
nomenon, the trend among some Muslim men arguably has more to do
with instrumental contemporary interpretative processes, and a prevailing
culture of patriarchy in the West that is used to justify patriarchy elsewhere
than it has to do with the principles and fundamental (uṣūl) laws of Islam.
On the other hand, while some Muslim feminists have urged Muslim
women in reaction to abandon the presumption “for hijab” ‒ and while
clearly understandable on an emotional level, as is argued below, such an
abandonment is on the facts unnecessary in Australia. It is thus posited that
Bullock’s position – which reflects the broader consensus of Muslims and
Islamic scholars and encapsulates a deep knowledge and understanding of
Australian culture and mores and is within the scope of Australian law – is,
therefore, better the presumptive position for Australia (and I explore it
further below).
Definitions
The key legal concept with respect to the covering of one’s body, male or
female, is that of awra, very loosely used here as an indicator of modesty
but is the foundational definition in Islamic law for the determination of an
appropriate lawful form of Muslim dress. Under the Sharīʻah, the awra are
the parts of a male or female body that must be covered and cannot under
normal circumstances be exposed ‒ excluding a select, predefined class of
persons.
The Qur’ān uses the word awra, but only in a related context.36 The
Qur’ān is not prescriptive with respect to what parts of the body man-
datorily need to be covered in public. The root of the verb awra denotes
something that is not perfect, the human genitals or something that should
be covered and thus be hidden from others’ eyes.37 This general term awra
is analysed in conjunction with the Qur’ānic reference to a piece of cloth
called the khimar, which pre-Islamic women wore over their heads (but
customarily their chests and necks were exposed),38 and, therefore, not
identical with the contemporary hijab. The Qur’ān required the then newly
converted Muslim women to draw this khimar over their bosoms.39 This
Qur’ānic command can, thus, be read as a rule of general application in
which it is mandatory for a Muslim woman to cover her bosom, a matter
discussed below under “Hijab.”
The term hijab, sometimes loosely translated as a headscarf (khimar)
under Islamic law appears to refer to the piece of cloth that variously cov-
ers the woman’s hair ‒ as worn by European (Bosnian, Turkish, Albanian
or Russian Caucuses) Muslim women in Australia, or the hair, neck and
shoulders, as worn by Asian (Malays or Arab Sunnis or the dark head cover
and cloak worn by some Lebanese and Iraqi Shi’tes) ‒ but in any event, are
all groups that customarily covered their bosoms separately with a blouse
or dress. In this context, it is noted that Bullock is not prescriptive with re-
spect to a style or form of “proper” hijab and is therefore accommodating
of the diversity of the styles present in the Australian Muslim community.
Bullock also notes that the term veil as used in English and in the An-
glophonic tradition usually refers to a transparent piece of cloth attached to
a woman’s hat ‒ and which can be drawn over a woman’s face for modesty
and is, therefore, in practice closer in meaning to the niqab, where the
fabric covers a woman’s face, covering one or both eyes.40 In this paper,
the term hijab is used for the headscarf, however worn, and niqab as the
face veil.
If Islamic law is to be determined or altered for particular exigencies,
however, say to cater for local conditions in Australia, this must occur in
a principled and systematic manner through a recognized process of ijti-

had. The use of ijtihad is not uncontentious.41 A brief synopsis of ijtihad
follows: when there is an issue of uncertainty ‒ say something novel on
which the Qur’ān and or the Sunnah or Islamic law are silent or, on which
consensus (and in this instance local consensus) has not yet evolved,42 and
in the absence of a “just” local custom that is accepted as correct by the
overwhelming majority of the local Muslims ‒ then the dependent sources
may be interrogated to help develop the law, rebutting any relevant prevail-
ing presumptions on the issue. The key dependent source in this context
of hijab or niqab in Australia is customary law, and I will now examine it.
The word custom (‘urf) appears in the Qur’ān in the context of preex-
isting obligation but not in the meaning of binding custom,43 as in under
customary international law.44 During the Prophet’s mission in Medina,
Medina’s custom served as the backdrop to the developing Sharīʻah and
was recognized45 as a dependent source of law in Islam.46 That is, the early
Sharīʻah, which evolved during the revelation of the Qur’ān, did not occur
in a vacuum but that existing custom, and importantly, a customary system
other than that of the Quraysh,47 or of Mecca, served as this preexisting
foundation. Rudolph Peters explains that Imam Malik’s attempts to codify
and systematize the customary law of Medina48 ‒ and in this context, Me-
dinan custom was, and still is, used to some extent by all Muslims who
emulate Arab custom as part of their faith, and importantly in this context,
dress.
Some Islamic legal schools refer to the general abrogation of all pre-
Islamic laws and customs by the Sharīʻah. In practice, however, as in Me-
dina, abrogation was interpreted as the abrogation only of existing laws
and customs that were unjust or inconsistent with the Sharīʻah.49 With
conquest, Muslims adapted laws of the Jews, Romans, and Persians.50 In
practice, the Sharīʻah has coexisted with the many customary laws of con-
quered peoples,51 and custom has always been a practical source of law
under Islam.52
There is also evidence of the accommodation of preexisting custom in
other Islamized, non-Arab societies.53 It would appear to be unjust to treat
Australia as an exception to this timeless process by limiting the develop-
ment of Islamic law solely to adapting the customs of immigrant commu-
nities and denying Australian converts an opportunity to develop Islamic
law based on their own “just” customs ‒ fair and just Australian customs,
which are in keeping with uṣūl, and also fruru (laws over which there is not
an overwhelming consensus).
In contemporary Australia ‒ while only a few older Orthodox Chris-
tians, nuns, and deacons wear the habit, and a few other Australians use the
English veil at weddings and funerals ‒ the custom of covering, on the oth-
er hand, is not entirely alien to ordinary Australians. Thus, generally other
than among the so-called “loony right,” it is sometimes the arrogant acts of
the few Muslims that appears to raise the ire of the public, but to character-
ize the broader public as intolerant on this issue would not be accurate.54
Interpretation of the Sharīʻah

According to Islamic legal theory, discovery of law through ijtihad is pos-
sible, necessary, and permissible, but must among other things be accom-
panied by “right intent.” The intent of the Qur’ān and Sunnah generally is
referred to as the maqasid (the general discussion), of which is outside the
scope of this paper55 ‒ but, according to al-Jawziyyah (d. 751/1350), the
maqasid includes “educating individuals, establishing justice, hindering
injustice and promoting the interests of the public,56 all issues relevant in
the Australian Muslim context. Legal opinions of jurists developed through
ijtihad must however, be within the scope of the Qur’ān57 and the Sunnah58
and subject to Muslim consensus. While the Qur’ān is a Divine source for
Muslims, it is, and always has been, accepted that interpretation is done
through human minds, both male and female.59
In its words, the Qur’ān is a guide for all those perhaps paradoxical-
ly,60 who prepossess the quality of taqwa (righteousness).61 The Qur’ān
describes the people of taqwa as those possessing attributes and perform-
ing acts beyond what can superficially be passed off as birr (righteous-
ness),62 but deepens the definition in the following terms63:
It is not righteousness that ye turn your faces toward East or West64 but
it is righteousness to believe in God and the Last Day and the Angels65
and the Book and the Messengers; to spend of your substance out of
love for Him for your kin for orphans for the needy for the wayfarer
for those who ask and for the ransom of slaves; to be steadfast in prayer
and practice regular charity; to fulfil the contracts which you have
made; and to be firm and patient in pain (or suffering) and adversity and
throughout all periods of panic. Such are the people of truth, the people
possessing God consciousness.
It is noted that although modesty and right conduct appear implicit in
the requisite criteria, the question of women’s (or for that matter men’s)
attire does not rate a mention in this fundamental definition of what con-
stitutes righteousness. While dress can clearly demonstrate and express the
inner faith of a believer, it can also accentuate the superficial particularly
when these inner matters of faith are clearly absent. This absence is par-
ticularly poignant when the aim of Islamic dress is that the wearer is rec
ognized as a Muslim woman,66 but where poor or bigoted behavior can be

detrimental to good community relsations.67
The Current Australian Legal Position on the Head Cover

There is at present no legislation in any Australian jurisdiction that man-
dates or proscribes religious symbols.68 The use of the face veil too is not
regulated under law, except for both men and women, in some limited cir-
cumstances such as at immigration counters, banks ‒ or recently, for pur-
poses that require positive identification for legal matters. The New South
Wales Parliament passed special laws permitting police to require a person
to show his or her face in order to ascertain that the identity of the driver
accords with the image on the drivers license after a Muslim woman won
a case on what can loosely be described as a case of mistaken or unproven
identity. The person in that case was wearing the niqab.69
The Sayed Case, which was heard in the District Court of Western
Australia (WA), applied the common law on the niqab. This was a criminal
law case that alleged some financial irregularities on the part of senior staff
in an Islamic school. During the course of the trial, a prosecution witness-
es, who had been affiliated with the school and was known to the defendant
was required to testify. This witness wore the niqab.
The defense team ‒ acting for the principal, a Muslim familiar with the
issues of the niqab and hijab in the broader Australian community ‒ argued
that a witness, whose face was covered, denied the defense a fair chance of
assessing the credibility of her testimony and asked the court to direct the
witness to testify minus the face veil. While not suggesting that this posi-
tion was tactically unreasonable, the defense stance brought (the periph-
eral) issue of the niqab into the spotlight, greatly politicizing an otherwise
ordinary fraud case by bringing it to national and international attention.70
The witness said that wearing the niqab was her “personal prefer-
ence”71 and not a religious issue, but the niqab issue having attracted the
public’s interest did not abate until the judge suppressed publication of
the case transcript ‒ thus, depoliticizing the matter by taking it out of the
public’s attention.72 The issue of the woman’s hijab was not a matter for
the court.
Consensus (Ijma’)
Consensus is a source of Islamic law.73 Traditionally, classical jurists have
been reluctant to accept the consensus of scholars, particularly those on
a state’s payroll, as they are susceptible to the influence of power.74 Al-
Shafi’ī, which is the prominent school of law in Southeast Asia, “did not
validate the consensus of,”75 and “almost rejected the consensus of schol-
ars,”76 arguably for the same reason, but later settled on the position that
the consensus of the masses was preferable.77 This view probably emerged
because of the levels of government coercion and corruption in Muslim
states in the past, a situation that has not changed appreciably.
For this reason, while the position of the scholars is considered the
view taken in this paper the tradition of Shafi’ī that the consensus of the
Muslim masses is a better guide to what actually constitutes binding law
(fard); however, but if Muslim consensus is absent, the scholars’ consensus
indicates, at best, that the matter is wajib. As noted above, the consensus
in Australia appears to be that Muslim women regularly do not cover their
hair and, therefore, arguably do not consider it mandatory (fard), but will
nonetheless cover on religious or culturally significant occasions, conced-
ing that subjectively for these women in these social situations that hijab
is at least desirable. This differential behavior shows that the women are
making subjective distinctions between religious and nonreligious activi-
ties.
Some Muslim practice in Australia is affected, rightly or wrongly, by
a fear that the hijab will draw unwarranted attention to the person – and
for these women, practice in avoiding the hijab, therefore, is not a free and
informed religious choice and cannot reasonably contribute to the forma-
tion of consensus.
Notwithstanding, therefore, that Mernissi’s position of supporting the
abandonment of the veil reflects current Australian practice, I submit that
this is not the right presumptive legal position under the Sharīʻah, or Aus-
tralian common law. Further, in cases, because practice is based on a sub-
jective albeit unfounded fear of ostracism, it is also wrong in law. On the
other hand, Muslims believe that they have a guarantee from the Prophet
that Muslims will not as a collective agree upon something that is wrong,78
and provides a firm legal basis for consensus formation at both local and
global levels.
However, the Prophet’s statement on “disagreement”79 is a clear ac-
knowledgement that, while reasonable people may differ, it is extremely
unlikely that consensus will emerge on what is manifestly wrong. I posit
that the strong, well-reasoned and reasonable positions of the many inde-
pendent scholars – and some such as Bullock who argue for the rethinking
of the issues surrounding the hijab – must be taken into account at a time
when acts based on apathy or fear can pass for consensus.
On the other hand, and cognizant of the problematic nature of these
subjective determinations on issues not “manifestly wrong,” the Proph-
et encourages those who are ignorant of the legal issues to side with the
overwhelming majority.80 It is noted anecdotally, that there is no clear or

broad general consensus among Australian Muslims on the religious ne-
cessity or otherwise of the hijab, and it is time that the various positions
were examined, clarified, and crystallized into some form of consensus.
The overwhelming majority of Muslims in Australia consider niqab as not
mandatory, but on the other hand do not prohibit its use. Anecdotally, niqab
appears to be practiced at various times by many Muslim converts, argu-
ably to help them integrate into a largely immigrant community ‒ which is
also in some cases unwelcoming, once again not generally so, but because
of the loud voices of an obnoxious few.
Hijab in Australian Society

The question of hijab, and the precise extent and style of cover usually
is settled locally in many Muslim-majority states. However, in Australia,
where there are immigrants from many different Muslim states, many
Muslim women regularly do not wear the hijab. In support of those who do
not wear hijab, we can look to Mernissi, who documents how their mothers
and grandmothers fought against the veil.81
While Muslims have been present on the Australian continent for
nearly four hundred years, the first Makassars have left few traces of their
seventeenth-to-nineteenth-century life and presence on the Australian con-
tinent.82 Later immigrants such as the Malay pearl divers of the early 1800s
too have left few traces of their Islam and their fourth and fifth genera-
tion decedents almost overwhelmingly do not identify themselves as Mus-
lims.83 Further, the Afghan cameleers of the mid-1800s who helped “open
up” the continent’s desert interior to colonization too were mainly men
who married non-Muslim women who did not adopt the hijab ‒ and over
time, while some small pockets of Islamic identity remain, the vast major-
ity of their descendants have assimilated.84
This is probably because these early Muslim immigrants lived in much
less tolerant times ‒ including between white settlement and the end of
World War II, and under the White Australia policy when colored migra-
tion was proscribed. As a result perhaps of the pressure to assimilate into
a strongly Anglophonic culture, an Australian version of hijab has not
emerged.
The strongly assimilationist times were followed by a period of increas-
ing tolerance and acceptance of people both of color and of non-European
cultural backgrounds ‒ including many Muslims, Buddhists, and Hindus.
For Muslims, the practice of wearing hijab or niqab was greatly facilitated
by the openness of this period. The events of September 11 2001, however,
reversed some of the tolerant attitudes, a process greatly aided and encour-
aged by jingoistic politicians.
Notwithstanding the events of September 11, the clock has not entirely
rolled back to the attitudes of White Australia, and there is still a much
greater general understanding of the Muslim world. The media such as the
Australian Broadcasting Corporation, a public broadcaster, has done much
to increase the public’s understanding of Islam and Muslims through its
radio, television, and web programs.
Nonetheless, Islam continues to remain largely a faith of first genera-
tion immigrants and their families, and it is yet to be seen whether these
newer immigrant groups will use the more liberal religious atmosphere and
policies such as multiculturalism to evolve more sustainable cultural forms
of Australian Islam, steps not dissimilar to those recommended by immi-
grant Muslims and their children in other Western societies.85
Anecdotally, and based on unofficial and fairly rough polls, which
were not statistically based or constructed and carried out at Islamic cen-
ters in Sydney and Canberra, indicated that about 15 percent of women
wore hijab regularly.86 The number wearing niqab is well below 1 percent
of Muslim women.87 By the Shafi’īte criterion, as the practice of Muslim
women is the better indication of consensus on hijab, then Australian Mus-
lims do not consider either hijab or niqab binding. However, notwithstand-
ing the clear views of people like Mernissi to the contrary, few Muslim
men or women openly challenge the notion that many Muslim scholars
consider hijab mandatory.88
“Islamic Dress” Under Islamic law

The starting point with respect to a Sharīʻah analysis must be a textual
analysis of the relevant Qur’ānic verses. This is followed by the analysis of
dress in the Sunnah, examined in the contemporary Australian customary
context outlined above.
The word hijab occurs seven times in the Qur’ān. Mernissi notes that
the word often is used in a negative context, as something that prevents one
perceiving good, as in the hijab of self-aggrandizement preventing human-
ity from perceiving that which is good, or a “screen” preventing the wicked
from seeing God on the Day of Judgment.89 Most of the Qur’ānic refer-
ences to hijab, however, do not really address the question at hand. Only
the verses, directly or substantially relevant to “dress” are examined below,
whether or not they contain the word hijab.
What is “Modesty”? The Concept of Awra

As noted, the fundamental Qur’ānic concept with respect to Islamic dress
is that of awra.90 There is no real English equivalent of the Arabic term
awra. While modesty is a subjective notion, as a Qur’ānic legal concept,
it must also have an objective element. The objective test is not prescribed
fully in the independent sources and leaves some discretion for local social
conditions.91 Thus, what is Islamically modest can be gleaned from the
Sunnah, and the dependent sources,92 through judicial construction. There
are a number of local customary forms of dress and even local consensus in
cases, but there is no global consensus except of what must be covered up
during religious rites such as the ritual prayer and pilgrimage.
What actually constitutes modesty has for centuries been interpreted
and constructed within the framework of the local contemporary cultural
context, together with the Prophetic statement to cover “all except the face
and hands” discussed below.93 As mentioned, this is a very particular had-
ith, relating to the Prophet’s sister-in-law and is discussed below. However,
all schools of thought, which incidentally like the Shafi’ī school are usually
referred to by the names of their eponyms, (both Sunni and Shīʻah ) have
variously adapted this hadith (see below on the discussion on the exposure
of the feet, or the case of slave Muslim women).
For an objective understanding of what Muslims might consider con-
stitutes “modest dress” in Australia, a useful indicator would perhaps be
what visitors and guests wear to open days at a mosque. Most mosques
require (and advertise that) “modest” dress should be worn, and ordinary
Australians in various forms of attire do take these opportunities and are
welcomed to familiarize themselves with these places of worship. No one
is reasonably expected to wear hijab; they are allowed to visit the mosques
when modestly attired. While it is difficult to describe with any degree
of precision as to what is the range of clothes worn on these visits, what
is very clear however is that the Muslim community, by overwhelming
consensus, considers that clothing other than the hijab for women can con-
stitute modest attire. It is noted, however, that such clothing, if worn by
Muslim women, while modest is clearly not distinctively Muslim.
Men’s Awra
The Qur’ān does not specifically provide for a man’s awra.94 The key legal
yardstick here then is the issue of what parts of the body must be covered
for ritual rites, although given that a person in this position is deemed to
be in God’s presence, this level of covering might be considered an upper
limit of what must be ordinarily mandated to be covered. It appears settled
through consensus that a man’s awra is the area between the navel and the
knees, both inclusive, and the material that is used for this purpose should
not be of silk or gold, the wearing of both which are prohibited to Muslim
men.95 There are, however, no temporal Sharīʻah legal sanctions prescribed
in the Qur’ān and Sunnah against Muslim men who breach these limits.
Women’s Awra
Similarly the Qur’ān does not fully provide for the woman’s awra,96 and
again the Sunnah must be interrogated in this respect. The extent of the
awra for women for everyday matters does not appear to have universal
consensus, nor is the matter considered uṣūl. While Bukhari, the main col-
lection of Sunni hadith, dedicates several pages to the issue of dress, it
does not prescribe the issue of hijab or niqab in any level of detail.97 Two
other Sunni collections of hadith by Muslim98 and Malik99 are even sparser
for both men and women in the context of the appropriate attire for ritual
prayer.100 Malik refers to questions posed by women with respect to dress
during prayer.101 Perhaps, Muslims at the time of the Prophet were not pre-
occupied with matters of women’s dress and were possibly concerned with
much more pressing and important issues of the day.102
The Qur’ān however, does prescribe the proper use of the khimar.
Again, while not comprehensive, the Qur’ān does provide for this one ele-
ment of a free Muslim woman’s dress, and prescribes that her bosom must
be covered.103 This Qur’ānic requirement is further particularized by the
hadith in which the Prophet advised Asma, his wife’s sister to cover all but
her face and hands, presumably when Asma went out in public. Although
it must be noted that the marriage by the Prophet to Asma would have been
prohibited under the Qur’ān,104 and less rigorous rules of dress would have
applied as between the Prophet and Asma, and thus one would presume
that a law of general application could not solely be based upon this had-
ith.105
As a touchstone, however, and in contradistinction with general mat-
ters of dress, there is clear universal consensus surrounding the manda-
tory aspects of the Muslim covenant (uṣūl) such as belief in the one God,
prayer, fasting, the tithe, and the pilgrimage. There is little, if any, doubt on
the existence of consensus on these matters, including on the dress require-
ments for ritual worship. Thus, as with men, what must be covered can on
the facts be gleaned from the dress required for worship.
For convenience, in this analysis, the areas of women’s dress is con-
sidered under the two headings, the khimar (the head cover) and the jilbab
(broadly speaking, the body cover or cloak). This separation is arguably
permissible because a person’s head, face, and body are treated different-
ly by the Qur’ān for theological purposes – for example, for ritual ablu-
tions.106 Note however, that save for legal necessity, the dress for prayer
for both free and slave Muslim women is the same, and practical conces-
sions for other times are perhaps to enable the slave woman to perform her
work less encumbered.
It is now accepted by Muslim states under international law,107 that
slavery is prohibited, although perhaps not so in practice.108 However, the
existence in legal principle of a distinction between free and slave estab-
lishes that the clothing prescribed for prayer is not identical to clothing pre-
scribed for general purposes and that although concessions were granted
to slaves generally, given their precarious position in society,109 the same
general concessions may not be available to free women, even if they are
in the work force.
Hijab in Islamic Law

The Qur’ān requires that “believing men . . . should lower their gaze and
guard their modesty.”110 For believing females (the “hijab verse”), the
Qur’ān states:
that they should lower their gaze and guard their modesty; that they should
not display their beauty and ornaments except what (must ordinarily)
appear thereof; that they should draw their veils [khumurihinna] over
their bosoms and not display their beauty . . . and that they should not
strike their feet in order to draw attention to their hidden ornaments.
And O ye Believers! turn ye all together towards God that ye may attain
Bliss.111
Dress restrictions for both men and women generally appear second-
ary as compared with the primary concern of protecting modesty. Further,
the final sentence in the hijab verse is a promise of reward for good-faith
compliance, not a threat of punishment for breach.
Here, the resulting twofold question is:
1. What does “modesty” mean? And in this context, what does a
man or woman have to cover up to be considered physically
modest, conceding that a person can be dressed appropriately and
yet draw attention in a way that is unbecoming or immodest?
2. What is the jurisdiction and scope provided by the Sharīʻah to
a competent authority in permitting them socially to encourage
a dress code, which is likely to be accepted as reasonable and
is considered just by local Muslim community consensus. The
examination of the jurisdictional aspect of the second question is
not necessary for the purposes of this paper as Islamic law is not
operative in Australia other than where an individual voluntarily

submits to its jurisdiction. Australian Muslim leaders have
no legal authority to enforce dress standards – and, therefore,
I do not consider this aspect any further. The scope of the law
in prescribing the extent of the cover required is discussed
below.
The autonomy and unfettered individual choice with respect to choos-
ing and the degree to which one observes one’s faith both in Australia and
under Islamic law is settled.112 The Qur’ānic onus on the individual Mus-
lim is to protect his or her own modesty – whatever this might mean in
a subjective sense by guarding his or her eyes and by dressing modestly.
Incidentally, there is nothing in the words of the Qur’ānic provision that
suggests that Muslims must enforce such a “covering up” of an “offend-
ing” party.
However, some Muslim majority societies do enforce cover, such as
the niqab in Saudi Arabia. The religious basis for enforcing women’s dress
standards does not come from the Prophet’s practice113 but arguably derives
from a particularized interpretation of a very general Qur’ānic verse.114
According to the Qur’ān, notwithstanding this enforcement in places of
women’s dress code, whether or not the other party is fully and modestly
clothed is not a relevant consideration. The command to both Muslim men
and women is to look down – that is, away from what is unlawful – and this
obligation holds in all circumstances; the hijab verse does not import au-
thority to order change in the offending party. In fact, an obligation to cast
down their eyes makes enforcement by the fact questionable as it requires
disobedience to this Qur’ānic injunction. In a normative sense, a Muslim
should first obey the law pertaining to him or herself in preference to sav-
ing others, particularly at the risk of disobedience or hypocrisy.
An addition to the “twofolded question” above then is what do the
Sharīʻah-dependent sources recommend as a Muslim woman’s general at-
tire, which a Muslim may subjectively formulate in order to foster her own
belief and practice? The hijab verse requires women to cover their bosoms
– and having covered their breasts, women should not then nullify this good
act by otherwise drawing unwarranted attention. This is an added bit of ad-
vice to Muslim women, not to give less disciplined men or those not bound
by the Qur’ānic injunction to cast down their eyes, a pretext or defense for
their own transgressions whether physical or otherwise. The vernacular for
this kind of defense in Australia (and no doubt many other jurisdictions)
is that “she was asking for it.” Clearly such a defense is neither admissible
under the Sharīʻah criminal law,115 nor under Australian law.
The hijab verse, nonetheless, takes cognizance that such attention
seeking or seduction can in some cases perhaps cause unlawful desires in
others. The acting out of some of these desires can in some instances be a
breach of the Sharīʻah criminal law, but if consensual, generally, is not now
in breach of Australian criminal law. This verse clearly prescribes both the
letter and the spirit of the provision or its maqaṣid, which is the protec-
tion of the modesty whatever this might mean in a particular community
– depending upon the degree of application of the Qur’ānic concession for
“what might (customarily) appear ordinarily thereof” in that locality, and
is discussed below.
The absence of temporal sanctions for breach of awra provisions (or
for a lack of modesty) is not to underplay the importance of modesty as a
religious issue. The ritual prayer, a crucial matter for Muslims, carries no
temporal sanction for its neglect, but this fact alone does not diminish its
import. Similarly saying that a woman’s manner of clothing is her own
business is not to say that for believing woman (and men) that the ab-
sence of temporal sanction alone is a bar to the practice of what they may
individually and subjectively believe is mandatory or which pleases their
creator. Katherine Bullock, an Australian Muslim woman, negotiates these
tensions in a principled and precise manner and a neglect of such aware-
ness trivializes this important debate.
Anecdotally, however, some Australian Muslim women, who do not
wear the hijab, still appear to consider the hijab as religiously necessary,
perhaps because it was customary in their home countries or have anecdot-
ally heard that this is an important element of a Muslim woman’s attire.
At any rate, the stereotypical Muslim woman as shown in the Australian
media is inevitably covered, although this is arguably for greater visual
effect rather than an understanding of the underlying Sharīʻah laws.116
Some Muslim women, perhaps those who feel the obligation to do this,
also sometimes take up or revive the practice of hijab as they realize that
Australian society generally is more accommodating than the few loud Is-
lamophobic voices, or even their own internal but often unsubstantiated or
exaggerated fears.
On the other hand, globalization has had a homogenizing effect in
some Muslim communities, particularly with respect to limiting or restrict-
ing women’s autonomy. In an example, described by Imam
The Bashir regime in the Sudan, for instance, attempted to impose the
Iranian chador on Sudanese women in the early 1990s.117
This effort was not successful in the Sudan. That is, an effort by some
Muslims to create “instant custom,” as in international law,118 was unsuc-
cessful in that instance. Efforts by men and women to impose non-indig-
enous religio-cultural norms, particularly custom, on which there is not a
broad consensus, has not appeared to have succeeded to date. In a similar

example, the United States and its allies have not been able to discourage
the majority of Afghan women from wearing the blue burkas.
While the use by women of the head cover decreased significantly
in colonial times – particularly in the urban areas of colonized Muslim
States119 – the process of decolonization over the last fifty years or has
resulted in some women reveiling,120 and might perhaps result in the evo-
lution of new norms. If this argument is correct, it indicates that the better
view is that – where there is not an explicitly mandated form for women’s
clothing other than for Qur’ānic requirements and a broad consensus that
both men and women should dress modestly – that rules and consensus
around these matters are best allowed to evolve separately and indepen-
dently in each separate locality.
Khimar
The Qur’ān requires believing women to “draw their veils over their bo-
soms,”121 – their chests and the upper parts of the body, which were not
always covered even by free Muslim women in the early days of Islam.
Note that the word veil has slightly different connotations in English.122
The original word used in the Qur’ān is khimar (a piece of cloth worn over
a woman’s head).
While one could argue that the khimar already covered a free, pre-
Islamic woman’s hair – although the extent of cover was clearly not as
strict as is the contemporary expression of the hijab, (that is, according to
some schools, that no more than three hairs may be exposed). We also do
not know whether the pre-Islamic custom required women to cover their
hair at night or in public generally – that is, when not exposed to the hot
Arabian sun (that the khimar was worn for purely functional reasons, as did
men of the day who also covered their head necks and shoulders, a practice
continued to this day, but is not religiously significant, although on the
other hand this custom is practiced by non-Arab Muslim men particularly
during ritual prayers). However, the pre-Islamic society considered expos-
ing women’s breasts, nude circumambulation of the Kabʻah, and burying
infant daughters as acceptable – and this could not reasonably be perceived
as a community that covered their hair in public, as do Muslim women in
hijab for reasons of modesty or propriety.
Nonetheless, custom – and notwithstanding that the original reasons
for its adoption was functional rather than for modesty – can subsequently,
as with men in the Shafi’ī school covering their heads during prayer, be-
come binding, subject to the proviso that such custom is “just.” Hijab or
any other custom for that matter, if it regularly results in Muslim women’s
molestation, would be difficult to characterize as just. Adverse reaction by
Australians to Muslim women in hijab, while not unknown, is far from
regular or common. Even in these instances, it would be difficult to estab-
lish that hijab was the sole reason for the adverse encounter.123 Thus, a cus-
tomary religious requirement for a Muslim to wear a khimar is unlikely to
be considered unjust by the majority of contemporary Australian Muslims.
However, given the unique status under the Sharīʻah of the Qur’an as
“God’s literal word,” it is noted that in Islam that one must constantly “re-
calibrate” Sharīʻah laws with respect to this fixed point if interpreters are
true to their assertions of fidelity to the text as God’s word. Importantly in
this context, according to Kecia Ali, the text is also protective of women’s
rights,124 which she notes, includes “many matters of gender and sex,”125 a
view that I strongly endorse.
Such periodic reevaluation of norms and laws will help to rectify his-
torical anomalies, which have resulted from external pressures – for ex-
ample, colonialism. As documented by, but not argued as such by Mernissi,
political conditions during the colonial era had necessitated her predeces-
sors to abandon the veil – and in order to do so, they had to fight vigorously
against the weight of Islamic jurisprudence, and then they established a
precedent to achieve this outcome.
The alleviation of repressive political pressures or the practical absence
of coercive pressures in communities such as in Australia must then trigger
the re-interpretation process of the primary sources to allow for these more
liberal (as they once accommodated the more repressive) circumstances by
following the most practical interpretation that fits the Qur’ān. How this
must be achieved is not contentious in principle, which is that the reformu-
lation of the law must be done with taqwa – or to put it in contemporary
parlance, in a principled manner. This process can be frustrated through
instrumental or goal–oriented development, which Roberto Totoli notes is
characteristic of the twentieth century.126
Local Dress Customs

Recall that Qur’ān 24:31 is qualified by the phrase “except what (must
ordinarily) appear thereof (illa ma zahara minha),”127 which Khaled Abou
el-Fadl reasonably notes “is an indication that the laws of modesty might
partially depend upon customary practices within a society.”128 Mohammad
Asad notes that the broad wording of “what must ordinarily appear there-
of” is much wider and its deliberate vagueness permits time bound changes
that are necessary.129 In this context, the Qur’ān warns against increasingly
narrow constructions that, in attempting to “create certainty,”which collat-
erally can curtail flexibility and unnecessarily reduce their scope.130 While
the Qur’ānic concession is potentially as broad as is reasonably necessary
in a particular society, I will in this context focus solely on the hair and
face.
As with many Qur’ānic verses, however, this verse is stated at a high
level of generality, and the Sharīʻah methodology is to look to the Sunnah
for its practical application. The oft-repeated hadith in this respect states
that women should only show their face and hands.131 This view is, howev-
er, neither unanimous nor conclusive.132 For example, some schools hold
that women can expose their feet even in prayer, while others mandate
covering.133
Over time, local consensus on what is appropriate with respect to
women’s clothing arguably has evolved separately in different Muslim
communities, although there are also clearly areas of broad agreement.
Notwithstanding the position of the jurists who advocate head cover, one
can however assert with some certainty that there is not a uniform Muslim
consensus on head or face cover.
Asad cites the respected jurist Zamakshari (d. 1144) – who in his com-
mentary of Qur’ān 24:31 on “what might ordinarily appear,” notes that
women must show their faces in litigation in court, for purposes of mar-
riage or are permitted to expose their feet in the streets, particularly if they
could not afford footwear.134 As mentioned, exposing even free women’s
feet during ritual prayer is also permissible in some schools135 and shows
that the jurists did not take the Prophet’s words to Asma literally and as
definitive, but only as indicative of what might be covered. Further, el-Fadl
cites the hadith literature to show that Muslim slave women do not have
to cover their face, hair, or arms and gives an insight into the thinking of
jurists from a bygone period. 136
In this context, Imam has documented and described the everyday
manifestation of this observation of “what may ordinarily appear” in the
variety of Muslim women’s clothing used by women:
Muslim women’s dress codes are often misleadingly referred to
generically as veiling or hijab. This obscures the historical changes in
modes of dress and cultural contexts – and thus the fact that people
may be talking of quite different modes of dressing when the refer
to increased veiling or women’s hijab. The black lose cloak covering
head to ankles known as the chador in Iran is not the same as the loose
swathe of sometimes diaphanous cloth draped around the body called
the tobe in the Sudan. Both are unlike the headscarf and maiyafi (cloth
covering head and shoulders) of ‘modest’ women in Nigeria. Nor are
any of these identical to with the headscarf sometimes worn with jeans
that is acceptable in South Africa.137
This variety is also some evidence that the manner in which Muslim
women are covered is not universally agreed upon. These formulations
cited require the cover of the hair but not face or shoulders – and further,
the issue of whether covering feet, arms, and ankles is required is also not
addressed. What appears from the jurisprudence, however, is that hijab
formulation is not time bound and should continue to remain vague, non-
justifiable, and not enforceable.
Australian Dress Customs

In an Australian cultural context of what the phrase “ordinarily appears”
might mean, consider the following. Australians generally are quite re-
laxed about clothing and the two ends of the cover spectrum; on a warm
sunny day, expect a range of people dressed from “very scantily clad” or
even nudists at one end of the spectrum to nuns dressed in full habit at the
other. Both extremes are unusual, and the norm, whatever that might mean
for both men and women generally appears to involve covering the area
between the shoulders and knees with fuller cover in the colder seasons
and climes.
The better characterization, however, of what “normally appears to be
in Australia is not so much about the degree of cover, but that Australians
value personal autonomy and individual choice. That is, the better yard-
stick is that Australians would like to be left alone to decide what is best
for themselves. In other words, an Australian cultural take of “what must
ordinarily appear” is to let Muslim women decide for themselves.
While some Muslims (both men and women) advocate the hijab, and
in some cases even the niqab – in Australia, this is usually done in a man-
ner that is attempting to persuade. Coercion should not be permitted. On
the point of religious coercion, for children born and raised as Muslims
by their parents – a substantive parental right in international law,138 rec-
ognized in Australia, but arguably not so under the Sharīʻah, which may
culturally include dressing in a particular way might on one view be prob-
lematic.139
On the other hand, social pressure to assimilate can in cases appear to
cause great stress in younger children and young adults,140 and Mernissi’s
view provides a path that more closely reflects the cultural mores and ethos
of Australians is convenient and, therefore, a simpler and a more attractive
option particularly to those without a strong conviction that the hijab is
necessary.
However, the real question is: what is the better more principled posi-
tion for Australian conditions? This question it is argued is best answered
by seeking a position that is legally correct under the Sharīʻah,141 excludes
the effects of the historical application of legal necessity,142 allows Muslim

women who elect to do so to be distinctly recognizable, and is respectful of
Australian social and cultural norms – while being within the scope of the
primary sources of Islamic law.
Jilbab
The jilbab is a woman’s outer wrapping garment or a coat and takes many
different local forms. It envelops the body, but covering the head is not
mentioned.143 The abaya of Saudi Arabia is a woolen cloak144 and derives
from the root word, which stands for “something that covers something
else” (in this case, the body with cloth), and is in Saudi Arabia customarily
worn with a niqab (literally a piece of cloth with an opening or hole for
the eyes145). According to Lane and in this context, synonyms of the word
jilbab are izar (a sheet that covers all but a hand) and mulaha (a flat black
sheet).146 The Qur’ān recommends that Muslim women wear an outer gar-
ment when they go out:
O Prophet! tell thy wives and daughters and the believing women that
they should cast their outer garments over their persons (when abroad):
that is most convenient that they should be known (as such) and not
molested: and God is Oft-Forgiving Most Merciful.147
For ease of analysis, the provision is considered by examining its ele-
ments. The provision states that women should be known as Muslims –
and, therefore, bound by a certain moral and ethical code, and to bullies,
that they must desist.
El-Fadl states that this verse had very particular circumstances with
respect to young men harassing women who went out at night to relive
themselves (in the desert).148 Dress alone, however, can be an unreliable
indicator to make any useful judgment about the wearer – other than as the
Qur’ān indicates, making it convenient for Muslims wearing the jilbab to
be recognized in a society in which the women did not customarily wear a
cloak.149 The word convenient150 clearly does not import compulsion,151
but notwithstanding this, identity is an important issue particularly for a
religious minority. Generally, however, most Australian women do not cus-
tomarily wear a cloak, other than in winter or as a special evening dress.
Based on this criterion, Christian nuns in habit are for likely to be “rec-
ognized” as Muslims. This is, however, not the nuns’ intention. Sikhs too
have been mistaken as Muslims and, thus, unambiguous recognition argu-
ably is desirable and is often symbolically important. On the other hand,
women wearing the hijab (alone) are recognizable as Muslims.
The second element of the above Qur’ānic verse is that the reason for
prescribing the outer garment is so that Muslim women will not be mo-
lested.
Mernissi’s view is that the jilbab was prescribed to distinguish free
women from slaves, because of the harassment and molestation of the lat-
ter that was present in Medina in the early period of Islam in that city.152
The fact that women generally can be attacked, sexually harassed, or mo-
lested in Australia is not in contention. Absence of targeted harassment or
threat of molestation in a locality or the existence of general legal measures
to prevent molestation could on the facts negate this element. What con-
stitutes “molestation” is not defined, and thus, a reasonable but ordinary
meaning should apply. Even absent positive law in most Australian juris-
dictions prohibiting religious vilification, Muslim women do not generally
fear molestation because of their faith. The absence of religiously based
molestation of Muslim women means that the second requisite Qur’ānic
legal element is generally absent in Australia. On this reasoning, an outer
garment, therefore, should not be necessary.
The converse question is whether if “Muslim dress” was the primary
reason for molestation of Muslim women, then whether it is then possible
to abandon the dress, if that would prevent molestation? Harassment (and
molestation) of Muslim women in veil are sometimes perpetrated by a vo-
cal minority,153 who are arguably reacting to the hijab or niqab or the be-
havior of the women rather than on religion alone – although generally, the
issues are inextricably linked.
What must develop in Australia, therefore, is a form of dress that iden-
tifies Muslim women – so that or even as Muslims, they will not specifical-
ly be targeted. In contemporary Australia, unlike in some Muslim majority
states where poorer non-Muslims are harassed or discriminated against,154
laws of general application protect everyone. Thus, in cases where the hi-
jab or the jilbab are the reasons for the harassment of women, the two ele-
ments of the Qur’ānic verse appear to negate each other, which is clearly
counterproductive.
The Sharīʻah in Australia, as indeed elsewhere, must evolve in a man-
ner so that the two elements of the Qur’ānic provision in question operate
in harmony. The broader policy question for Muslims with respect to this
Qur’ānic verse is whether jibab is a convenient end in itself or a mere
suggestion vis-à-vis protection – an end that in contemporary Australian
circumstances can be achieved through the operation of general laws pre-
venting discrimination of all people rather than just Muslim women alone,
and better fits in with the broader message of the Prophet, which is as a
mercy, among other things, to all of humanity.
Anecdotally, the view among a significant minority of practicing Aus-

tralian Muslim women appears to be that the head cover is desirable but
perhaps not mandatory, although the take-up rate in Australia is possibly
much lower than the figure of 40 percent cited by Bullock for women in
Cairo.155 While some women may wear the hijab for purely cultural rea-
sons, at least some of these women can be presumed to consider it manda-
tory.156
Conclusion on Hijab
A minority of Muslim women in Australia wear the hijab on a regular ba-
sis. Therefore, Mernissi’s position, that the veil should be abandoned in
modern society, is both convenient and appealing in Australia for a large
number of Muslim women. It must, however, be noted that she is a Mo-
roccan scholar basing her work in that jurisdiction’s historical and social
contexts, which are significantly different to those generally prevailing in
Australia. Mernissi’s experience possibly reflects the practical experience
of Muslim immigrants, who come from Muslim majority nations. Knowl-
edge or practice of Islam is not a criterion for immigration to Australia, and
most immigrants have educational or vocational skills that will primarily
promote economic and social integration – and as a broad generalization,
for whom Mernissi’s views appear to strike a chord. Mernissi’s views, that
precludes the vision of a distinctively Australian Muslim community, also
appears to fit in better with longer term policies of conservative Austra-
lian governments that all immigrants should assimilate into the “Australian
way of life,” an evolving and fluid concept.
Notwithstanding the deference by some in Australia to Mernissi’s
works, and with no disrespect intended, there are few if any reasonable
grounds for such deference. Convenience of abandoning the hijab is likely
to be the key motivating factor. Combating patriarchy in Muslim states
arguably underlies Mernissi’s position on the hijab. On the other hand,
paternalism is not likely to suffer greatly if Australian Muslim women doff
their hijabs.
On the other hand, I favor Bullocks’s position, which advocates hijab
for Muslim women, as a principled position, and as opposed to the more
cynical assimilationist policies of the government of the day. It better suits
our society, values, community, and history – and importantly, it is in ac-
cordance with Islamic scholarship. Hijab is also a powerful symbol and
if accompanied with good positive behavior can promote better intercul-
tural and interfaith relations. These are, however, contested notions that are
open to discussion, and such debate would be a positive outcome.
Niqab in Islamic Law

While some jurists of the past have argued that the niqab is mandatory, the
examination of their individual views is outside the scope of this paper that
subscribes to the Shafi’īte view on consensus.157 At present, there is a clear
global consensus among Muslims that niqab is not a mandatory religious
requirement, except perhaps in societies and localities such as Saudi Ara-
bia where the wearing of niqab is enforced. However, women are required
to uncover their faces during the circumambulation of the Kaʻbah.158 It ap-
pears inconceivable that one fundamental duty of Islam, here the pilgrim-
age, would require the breach of another fundamental (uṣūl) practice. Few,
if any, Australian Muslims publicly claim that the niqab is mandatory. The
niqab, as discussed above and demonstrated by the witness in the Sayed
Case, is seen as a cultural and not a religious practice and, therefore, can be
accommodated under Australia’s multicultural policy, a program that has
bipartisan support in the Federal Parliament.
Nonetheless, as a matter of both Sharīʻah and Australian law, the cov-
ering of one’s face in some instances is religiously permissible. Bukhari
narrates that the Prophet covered his face and head (at-taqannu’), making
this permissible.159 Niqab, is often characterized by its proponents as mus-
tahab (as a good act that is recommended).160
The Australian legal position with respect to the niqab was applied
in the Sayed Case.161 The common law position in Australia is that hijab
is permitted, as generally is niqab, except in some particular limited in-
stances such as while providing testimony – but where cultural mores will
be accommodated within the bounds of what is “just.” Justice Deane, the
presiding judge, stated that this decision was, however, not to be treated
as a precedent possibly because the District Court is a lower court in the
Australian court hierarchy, thus leaving the task of setting a precedent to a
higher court.
From what has appeared in public so far, Justice Dean’s decision ap-
pears identical in all key respects to that of Zamakshari.162 While not sug-
gesting that Justice Deane was familiar with Zamakshari’s work, it is clear
that reasonable and fair people will reach similar decisions, as is the case
here. It is a fair and wise decision, which while clearly contemporary also
sits so comfortably with the jurists of the past. A systematic study of this
contemporary decision would help Muslims to draw together and help
crystallize a general view on the niqab around this now revived position
of Zamakshari as this is now, broadly speaking, part of the common law
of Australia.
Islam in Contemporary Australia

According to Amina Wadud, “at the level of the average [American] Mus-
lim man or woman . . . Islam is whatever they have inherited, culturally
and ethnically.”163 Anecdotally, this is also the case with many Australian
Muslims. Part of this inheritance is arguably a culture of violence and mi-
sogyny. Violence against women164 and misogyny are both present in the
broader Australian community,165 making Muslims indistinguishable from
the mainstream in this unfortunate regard. Muslims may also be isolated
by language and cultural barriers that will on the facts be compounded by
the niqab, but perhaps less so by the hijab. For Muslims born and raised
in Australia, if the hijab or the niqab are freely chosen, sometimes caus-
ing some difficulties with non-Muslim family members, but otherwise it
should not prove isolating.
There are great efforts in Australia – through law, education, and social
sensitization – to help eradicate patriarchy and the unequal or iniquitous
treatment of women based on their gender alone. Patriarchy is a terrible
blot on a country otherwise greatly focused on issues of human rights and
dignity. The Australian Muslim community too would no doubt greatly
benefit Muslim women and men, as well as the border community, not
to lag behind on this score – particularly given the wonderful example of
gentleness and kindness shown to both women and men by the Prophet of
Islam. A decrease in the general level of violence in Muslim families will
improve the quality of life for its women and children. Further, decently
behaved hijab wearers will improve the visibility of the Muslim commu-
nity and the esteem that it is held in the eyes of the broader community.
As mentioned, Mernissi’s work on the veil and women’s issues,166 are
well regarded in Australia. On the other hand, Mernissi’s views are not in
keeping with the evolving position of hijab in Australia and this area of the
world and its nearest Asian Muslim neighbors, where many young women
appear to be taking up the hijab for religious reasons, as an assertion of
identity or in solidarity with Muslims. Mernissi’s position supporting the
abandonment of the veil for Muslim women is also, as discussed, at odds
with Australian common law and, therefore – while not suggesting that this
is an Islamic criterion — is unnecessarily restrictive as a starting point to
help develop a sustainable, informed, and genuine consensus position in
Australia. Mernissi’s work – while advocating justice for women, a central
issue for our times – nonetheless does not represent the diversity of Mus-
lim cultures that are present in Australia.
Bullock, however, notes that the uncritical use of Mernissi’s work as
authoritative is problematic.167 It is posited that Bullock’s views are rea-
sonable because in addition to the undesirability in principle of uncritically

accepting any proposition – in this instance, Mernissi’s work, which is
based on the study of a society whose history and culture are significantly
different and, therefore, should not by default be considered applicable to
Australia unless her conclusions are explicitly shown to be otherwise.
The two scholars’ analyses result in very different conclusions on at
least one aspect of the use of the veil – Mernissi, considering the veil op-
pressive, while Bullock does not support this broad overarching generali-
sation.168 Bullock’s position is clearly supportive of women wearing the
hijab and cites with approval John A. Williams’ statement that “[the hi-
jab] conforms more to the religious law of Islam than any other available
dress.”169 Bullock considers the hijab as an expression of Islamic identity
importing an element of religious obligation. While Bullock appears to be
in no doubt that hijab is normative under the Sharīʻah, she is not prescrip-
tive or making a call for enforcement. It is reiterated, that as an Austra-
lian, Bullock is much more familiar than is Mernissi with the Australian
social, historical, and cultural context. In addition, her position also sits
much closer to the Australian common law position, and is not defensive
or reactive.
For these reasons, I posit that Bullock’s is the better presumptive posi-
tion for Australia, and I call on Muslim lawyers to positively engage with
the Australian judiciary on the notion that Bullock’s position on head cover
would serve as a useful orthodox starting position to help the debate and
the process of the development of a legal position regarding the hijab and
the niqab in Australia under both Australian law and local Islamic custom
– thus, helping the crystallization of an Australian Islamic position, and
one that is not antithetical to the views held by Muslims outside Australia.
My plea is that Muslim and non-Muslims interested in this issue is not
to confine their thinking to works such as Mernissi’s, excellent as they ap-
pear from a purely Western secular perspective, but also to take a broader
survey of the literature. A wider range of sources will help to develop an
authentically Muslim position – in keeping with the jurisprudence and the
global Muslim community and allowing Muslims to be recognizably Mus-
lim in the best possible way. For the reasons discussed, Bullocks work
should be considered mandatory reading for those in the law interested
in the principled development of both Islamic custom and the Australian
common law with respect to Muslim dress.
Conclusion
It is related in the Sunnah, “eat what you wish and wear what you wish
if you can avoid two things, extravagance and conceit.”170 This display
of conceit referred to certain forms of dress, and was addressed to men.

For women, the issue is to not dress in a manner that is seductive, but the
advice against conceit and arrogance is also apt. It is unclear as to what is
the “true” position with respect to the hijab in Australia due to the absence
of reliable statistical information, but it is clear that there is no general or
broad consensus.
If defeating patriarchy is within the scope of the Sharīʻah – as is per-
suasively argued by Ali, Bakhtiar, Bullock, el-Fadl, Mernissi, and many
others – it is a reasonable view given the primary importance of the fun-
damental notion of justice in the Qur’ān, and then patriarchy must be ex-
punged from Muslim society but done so in a positive and concerted way
that is Islamically “right.”
The Qur’ān describes the Muslim Ummah as the mid-most commu-
nity (one that avoids the extremes) because it is upright and equitable.171
Surely, the Muslim community, and particularly its legal fraternity, can
formulate a Sharīʻah-compliant form of awra for Australian conditions that
is legally methodologically faithful to the sources, its rich jurisprudence –
and to the broader notions of justice, equity, and human dignity. A range of
voices and respectful debate will help this process of the crystallization of
the consensus on this issue.
At a general level, such consensus-forming debate on all issues of sig-
nificance will also benefit the broader community that will be able to find
reasonable, thoughtful, principled, and intelligent explanations for conten-
tious Islamic issues in the community generally. Using Australia’s substan-
tial resources in the fields of research, information management, and dis-
semination will also benefit our many Muslim neighbors, some only now
emerging from periods of desperate oppression or poverty.
The general principled development of personal Sharīʻah law by Mus-
lims will, to the contrary, aid many including those such as Justice Deane
who would not then have to speculate on the Muslim community’s position
on an issue in litigation, but will then have a rich base of well-researched
and an argued range of legal opinions and ideas to draw upon to help the
development of Australian common law in relation to Muslims. So, on the
question: do Muslim Australians have something distinctive to offer its
people and land? The answer to this question must be an affirmative “yes.”
Consensus is an important source and foundational aspect of Muslim law.
Providing practical working examples of how this consensus building can
take place – freely, with diversity, with vigor, and yet with respect for the
laws and jurisprudence of both Islam and of Australia – will be a great
boon to this land and its peoples.
Notes
1. The term traditional Muslim is used here in the context of people
adopting the Muslim faith of their families and as opposed to those
who adopt the faith ‒ generally as adults, and of their own volition,
although those who are required to convert, say for the purposes of
marriage ‒ are also included in this nontraditional category for the
purposes of this paper.
2. It is not suggested that the presence of Islam on this continent
is new; it is not ‒ consider Peta Stephenson, Islam Dreaming:
Indigenous Muslims in Australia (Sydney, Australia: UNSW Press,
2010). A brief history of Islam in Australia is examined below. Most
immigrant Muslim cultures have in the past largely melted into the
mainstream.
3. Australian Associated Press, “Fred Nile’s Bill to ban the burqa
to be debated,” The Telegraph (Sydney, June 23, 2010), www.
dailytelegraph.com.au/news/fred-niles-bill-to-ban-the-burqa-to-be-
debated/story-e6freuy9-1225883022348.
4. Agence France Presse, “Une majorité de Français seraient favorables
à une loi interdisant le voile intégral en France,” Le Monde, January
19, 2010, www.lemonde.fr/societe/article/2010/01/19/une-
majorite-de-francais-seraient-favorables-a-une-loi-interdisant-le-
voile-integrale-en-france_1293519_3224.html.
5. www.onislam.net/english/ask-the-scholar/morals-and-manners/
dress-and-adornment/169916-alternatives-for-french-muslim-girls-
after-hijab-ban.html?Adornment=.
6. www.homelandsecurityus.net/countries/australia/sydney_beach_
race_riot_spreads.htm.
7. It is not implied that these despicable acts are the sole provenance
of the far right in the West alone. Churches, synagogues, mosques,
businesses, schools, and even kindergartens in Muslim majority
states have been targeted and have resulted in loss of life and
property and have received extensive injuries or damage. While
a majority of Muslims appear to disown such criminal acts, they
either seem powerless or unwilling to actively oppose such acts.
(Muslim governments, mostly despotic regimes themselves have
mostly cracked down on dissent that have threatened their own
power structures, mostly but not always successfully in the recent
past as seen with the peoples’ power movements in the so-called
Arab Spring.)
8. Racial Discrimination Act (Commonwealth of Australia) 1975
incorporates into Australian domestic legislation the law, The
International Convention on the Elimination of All Forms of Racial
Discrimination, that was opened for signature on December 21,
1965 and entered into force on January 2, 1969.
9. The Australian Constitution. Section 116.

10. Peta Stephenson, The Outsiders Within: Telling Australia’s
Indigenous ‒ Asian Story (Sydney, Australia: UNSW Press, 2007),
42. Stephenson, Islam Dreaming.
11. Tom Campbell, The Legal Theory of Ethical Positivism (Brookfield,
VT: Dartmouth, 1996).
12. The terms Islamic law and Sharīʻah are used interchangeably.
13. The shortcomings of a positivist approach can be seen with respect to
systems of law such as the Nazi legal system and are acknowledged:
Ronald Dworkin, Laws Empire (Cambridge, MA: Belknap Press,
1986), 104. However, as a universally recognized legal tradition
that has stood the test of centuries, this critique arguably cannot
reasonably be brought to bear on the Sharīʻah ‒ although no doubt
there is a tiny minority who would undoubtedly hold this view,
perhaps a view it is posited held on emotion rather than one based
on objective fact.
14. Sami Zubaida, Law and Power in the Islamic World (London: I B
Tauris, 2003), 23.
15. Ahmad Hassan, The Doctrine of Ijma’ in Islam: A Study of the
Juridical Principle of Consensus (Islamabad, Pakistan: Islamic
Research Institute, 2002), 4.
16. Taha Jabir al-Alwani, Source Methodology in Islamic Jurisprudence
(Herndon, VA: The International Institute of Islamic Thought, 2003),
4. Taha Jabir Al-Alwani, Towards a Fiqh for Minorities (Herndon,
VA: The International Institute of Islamic Thought, 2003), 19. Al-
Alwani also aptly describes the dependent sources of Islamic law
as the disputed sources of Islamic law. Ibid. The dependent sources
used in this paper are:
qiyas ‒ Wael B. Hallaq,“Non-Analogical Arguments in Sunni
Juridical Qiyas,” in Islamic Law and Legal Theory, ed. E. Edge
(Aldershot, UK: Dartmouth, 1996), 205.
ijma’ ‒ Hassan, The Doctrine of Ijma’ in Islam, 4;
‘urf (custom) ‒ Rudolph Peters, Jihad in Classical and Modern
Islam (Princeton, NJ, Markus Wiener, 1996), 19. Ahmad al-Raysuni,
Imam al-Shatibi’s Theory of the Higher Objectives and Intents of
Islamic Law (London, The International Institute of Islamic Thought,
2005), 57.
17. As the Sharīʻah is a religious law, not all transgressions provide
for temporal sanctions. Some of the most serious breaches such as
denial of a God or neglect of the ritual prayer are either punishable
or may be forgiven at God’s discretion but in the hereafter.
18. Islamic law has a much more sophisticated set of classes of action
that goes beyond the lawful-unlawful dichotomy: Kecia Ali, Sexual
Ethics and Islam (Oxford: Oneworld Publications, 2006), xxi.
However the use of this scale is not directly relevant here and the
lawful–unlawful split of action suffices and will be employed.
19. Zubaida, Law and Power in the Islamic World, 107.
20. Ibid.
21. Muhammad ibn Idris al-Shafi’i, Treatise on the Foundations of
Islamic Jurisprudence (Cambridge, UK: Islamic Texts Society, first
published 1961, 2nd ed, n.d), 333.
22. Zubaida, Law and Power in the Islamic World, 23. The Arabic term
for probably correct is zann. According to Imran Ahsan Khan Nyazee
[Islamic Jurisprudence (Kuala Lumpur, Malaysia: The Other Press,
2003), 58], the distinction between fard and wajib is most evident in
the Hanafi School.
23. Edna Boyle-Lewicki, “Need World’s Collide: The Hudad Crimes
of Islamic Law and International Human Rights” (2000) New York
International Law Review 13: 43–62; Hassan, The Doctrine of Ijma’
in Islam, 18.
24. Javad Nurbakhsh, Traditions of the Prophet (New York, Khaniqahi-
Nimatullahi, 1981), 47.
25. Wael B. Hallaq, “Was the Gate of Ijtihad Closed?” (1984) 16
International Journal of Middle Eastern Studies 16 (1984): 10–12.
26. Ibid.
27. Ibid.
28. For example President Hafiz al-Asad, an Alawi, completed the
minor pilgrimage to Mecca, a city to which, under Islamic law,
Saudi authorities do not permit access for non-Muslims: A. I.
Ahram, (2002), “Iraq and Syria: The Dilemma of Dynasty,” Middle
East Quarterly 9, no. 2 (2002): 33‒42.
30. December 2011 AC saw in the dawn of the new Islamic year 1433
AH.
31. The following extract reflects this largely ‒ though not entirely
negative-self-identification:
A true salafi is not of the khawarij who consider most Muslims to be
kafirs (disbelievers) because of committing sins. He is not of the shia
who revile the Companions (sahabah), who claim that the Qur’an
has been altered, who reject the authentic sunna, and who worship
the Prophet’s family. He is not of the qadariyyah who deny qadar
(the Divine Decree). He is not of the murjiah who claim that faith
(iman) is only words without deeds. He is not of the mu’attilah who
deny God’s Attributes. He is not of the sufis who worship graves

and claim Divine incarnation. He is not of the muqallidun [one who
follows taqlid or precedent] who insist that every Muslim should
adhere to the madth’hab (School) of a particular imam or sheikh,
even when that madth’hab conflicts with the clear texts of the
Qur’an or authentic Sunna. Thus the true salafs are ahl us-sunnati
wal-jamaah. They are at-ta’ifat ul-mansurah (the Aided, Victorious
Group) and al-firqat un-najiyah (the Saved Party) which have been
described in several hadiths. (www.qss.org/articles/salafi/text.html)
32. The Qur’ān refers to the followers of Prophet Moḥammad, and is
a term accepted universally by Muslims, as “Muslims” (Qur’ān
22:78). The noun muslim (which derives from the same root as
Islam. in Arabic is masculine, singular. In its general English usage,
the word covers both the male and the female, respectively muslim
and muslima. The plural used in this paper is the anglicized plural
Muslims and will be used to represent the Arabic, muslimoon (male)
and muslimaat (female). Further, the term Sunni (Muslim or Islam)
used in this paper refers to the four major recognized Sunni schools.
The term Shīʻah (Muslim or Islam) refers to the Jafiri or Twelver and
the two other recognized Shīʻah schools. The generic English term
Muslim as used here includes Sunni and Shīʻah, male and female
Muslims.
33. Orientialism and Wahhabism while at two ends of the spectrum (and
while there are some exceptions to this observation) appear to have
a similar approach in that they seem to be goal-oriented views of text
and history: See Wael B. Hallaq, “The Quest for Origins or Doctrine?
Islamic Legal Studies as Colonialist Discourse” UCLA Journal of
Islamic and Near Eastern Law 2 (2002): 1. Professor Hallaq refers
to among several other Orientalist’s work ‒ for example. to the
“distorted evidence and twisted reasoning” and shallow analysis of
Professor Crone’s work (ibid., 9) and is also critical of Professor
Schacht’s work (ibid, 18).
Some contemporary material is also quite self-serving and goal-
orented: Wael B. Hallaq, A History of Islamic Legal Theories
(Cambridge, UK, Cambridge University Press, 1997), 174;
Khaled Abou El-Fadl, The Great Theft: Wrestling Islam from the
Extremists (New York, HarperCollins, 2005), 26; Khaled Abou El-
Fadl, Speaking in God’s Name: Islamic Law, Authority and Women
(Oxford, Oneworld Publications, 2001), 17; Michael Mumisa,
Islamic Law: Theory and Interpretation (Beltsville, MD: Amana,
2002), 51; Anne Elizabeth Mayer, “Islam and the State,” Cardozo
Law Review 12 (1991): 1015, 1025. The term instrumental use of
law is used in the sense – and while not endorsing his general views
on terrorism and their causes - as characterized in Michael Ignatieff,
The Lesser Evil Political Ethics in the Age of Terror (Princeton,

Princeton University Press, 2004), 123:
adjusting religious doctrine to rationalize the terrorist goal, rather
than subjecting it to the genuine interrogation of true faith.
and such use of law can also be
unabashedly result-oriented and disingenuously selective.
El-Fadl, Speaking in God’s Name, 172.
34. Roberto Tottoli, Biblical Prophets in the Qur’an and Muslim
Literature (Richmond, UK: Curzon, 2002), 182
35. Ayesha M Imam, “Muslim Religious Right (‘Fundamentalists’)
and Sexuality,” in Women and Sexuality in Muslim Societies, ed. P
Ilkkaracan (Istanbul, Turkey, New Ways, 2000) 121, 128.
36. Quran (33:13), in the context of homes whose protection from the
enemy some people used in order to avoid defending the town.
Qur’ān (24:58) describes three periods of privacy when people may
in the privacy of their rooms, be in a state where their awra may not
be fully covered, and persons other than spouses should knock and
seek permission before entering.
37. Milton J Cowan, ed., The Hans Wehr Dictionary of Modern Written
Arabic (Beirut, Lebanon, Libraire du Liban, 1980), 656.
38. Mohammad Asad, The Message of the Qur’ān (Gibraltar, Dar Al-
Andalus, 1984), 538‒39.
39. Qur’ān 24:31.
40. Katherine Bullock, Rethinking Muslim Women and the Veil (Herndon,
VA, International Institute of Islamic Thought, 2002), xl.
41. Wael B Hallaq, “Was the Gate of Ijtihad Closed?” International
Journal of Middle Eastern Studies 16 (1984): 3.
42. While some may dispute this assertion that this paper argues that
the variety of Islamic dress that has been adopted in the Muslim
world is indicative, of at least on the facts, a case for the absence of
a consensus.
43. Hold to forgiveness; command what is right; but turn away from the
ignorant.
(Qur’ān 7:199)
The phrase wa’mur bil ‘urfi (to command what is right) is used in
a context different from custom in the everyday contemporary legal
meaning. In this context, however, etymologically custom is by the
fact “right” ‒ as the words ma’rouf (good), ‘arafa (to know) and ‘urf
share common triliterals ‒ and provides a legal basis for retaining
what is good and abrogating bad custom, that is, custom that is
explicitly contrary to prohibitions in the Qur’ān and the Sunnah. The
qualifier dependent as mentioned, signifies accordance with Islamic

notions of justice and further must not be contrary to the accepted
laws based on the Qur’ān and Sunnah.
44. Article 38(1)(b) of the Statute of the International Court of Justice.
45. Peters, Jihad in Classical and Modern Islam, 19. Ahmad al-Raysuni,
Imam al-Shatibi’s Theory of the Higher Objectives and Intents of
Islamic Law (London, The International Institute of Islamic Thought,
2005), 57.
46. Cherif Bassiouni and Gamal M Badr, “The Shari’ah: Sources,
Interpretation, and Rule-Making,” UCLA Journal of Islamic and
Near Eastern Law 1 (2002): 135, 141. Anas bin Malik accepted
the prevailing customary law of Medina, and Abu Hanifa used the
custom (‘urf) that was “recognizably good”: Taha Jabir al-Alwani,
Source Methodology in Islamic Jurisprudence (Herndon, VA, The
International Institute of Islamic Thought, 2003), 27.
47. The Quraysh were the main tribe of Mecca and to which the Prophet
and the early caliphs belonged. Some Sunni Muslims hold that the
Caliph of the Muslim world must be from this tribe. Shīʻah Muslims
implicitly accept this position on the leadership of the Quraysh as the
rightful imam should according to the Shīʻah schools be descended
through the daughter of the Prophet and Ali, her husband and the
fourth orthodox Caliph.
48. Peters, Jihad in Classical and Modern Islam, 19. Anas bin Malik,
the eponym of the Sunni Maliki School, accepted the prevailing
customary law of Medina: al-Alwani, Source Methodology in
Islamic Jurisprudence, 27.
49. Maryam Kabeer Faye, Journey through Ten Thousand Veils
(Somerset, NJ: Tughra, 2009), 115, describes the comingling of the
legal traditions as inseparable.
50. Muhammad Baqir As-Sadr, Lessons in Islamic Jurisprudence
(North Haledon, NJ: IPI, 2005), 2.; Wael B. Hallaq, The Origins and
Evolution of Islamic Law (Cambridge, UK: Cambridge University
Press, 2005), 4, contests the view that the borrowing was heavy,
pointing to a vibrant pre-Islamic Arab legal culture, though this does
not substantially affect the key factor that Islamic law drew upon
custom. El-Fadl, Speaking in God’s Name, 35.
51. Zubaida, Law and Power in the Islamic World, 220. Noel J
Coulson, Conflicts and Tensions in Islamic Jurisprudence (Chicago,
University of Chicago, 1969), 4.
53. Ibid., 115. M. B. Hooker, Adat Laws in Modern Malaya: Land
Tenure, Traditional Government and Religion (Singapore, Singapore
University Press, 1972). Adat is customary Malay law. Mohd Daud

Bakar, ed, The Mejelle: Being an English Translation of Majallah El-
Ahkam-I-Adliya and A Complete Code of Islamic Civil Law (Kuala
Lumpur, Malaysia, The Other Press, 2001); M. B. Hooker, Islamic
Law in South East Asia (Leiden, The Netherlands: Brill, 1996), 14.
54. The following are two anecdotal examples of the behavior of
Muslims promoting distrust. In the first case, a young Muslim
woman in hijab reflected at a public gathering that she was
approached by a non-Muslim woman in summer and who had
inquired whether she was hot in “all that gear.” For whatever reason
the Muslim woman answered, “Yes but you are going to hell and it
is a lot hotter there.” While it is unfortunate that some Muslims do
not take the opportunity to engage more positively, and this is clearly
their right to do this, what was more disheartening was that many
in the audience, including older people, clapped and cheered the
woman’s answer. In another example, two Muslim women in hijab
had parked in a disabled parking spot (when not entitled to do this)
and a dispute that arose between a disabled man and the two Muslim
women, and the dispute degenerated into the issue of the hijab. It is
not suggested however, that any one side bears the responsibility for
better communal relations or that these two isolated examples are
indicative of the general behavior of Muslim women.
55. For an excellent discussion of the methodology, see Ahmad al-
Raysuni, Imam al-Shatibi’s Theory of the Higher Objectives and
Intents of Islamic Law (London, International Institute of Islamic
Thought, 2005).
56. Wan Azhar Wan Ahmad, “Public Interests (Al-Masalih Al-
Mursalah),” in Islamic Jurisprudence: An Analysis of the Concept in
the Shafi’i School (Kuala Lumpur, Malaysia: International Institute
of Islamic Thought, 2003), 9; Bernard K Freamon [“Martyrdom,
Suicide, and the Islamic Law of War: A Short Legal History” (2003)
Fordham International Law Journal 27 (December 2003): 299, 361]
states that ”All Islamic scholars agree that the achievement of justice
is the pre-eminent “cause of God.”
57. The Qur’ān states in 25:33 that Qur’ān is its own best guide (ahsana
tafsiir).
58. Qur’ān 10:59; Qur’ān 42:21.
59. Amina Wadud [Inside the Gender Jihad: Women’s Reform in Islam
(Oxford, Oneworld Publications, 2006), 197] cites the English
translation of a hadith that quotes the famous saying by the fourth
orthodox Caliph Ali that “[the Qur’ān] needs interpreters, and the
interpreters are human beings.”
60. It can seem paradoxical that the Qur’ān is a guide for those with
taqwa. One could argue that it is those without taqwa who are those
most in need – although the with-taqwa view fits in with the notion
of free will, and it is those with taqwa who are predisposed to using
their free will correctly, and are thus the ones who will seek and
follow guidance.
61. The term hudal lil moutaqueen (Qur’ān 2:2: this phrase can be
translated as “the Qur’an is a guide for to those who prepossess
righteousness or taqwa). Further, the word taqwa (or related
words to this effect) appear seventy-nine times in the Qur’ān,
indicating the centrality of the term taqwa as a technical term in
Islamic law.According to E. W. Lane [Arabic English Lexicon, vol.
1 (Cambridge. U.K: Islamic Texts Society, 1984)] the word taqwa
is used to describe one who is guarded, alert, cautious, and has a
reverential fear of God. To these qualities, the Qur’ānic definition
adds the quality of birr. The Qur’ān (91:7) notes that all humans
possess a soul and a proportion and order given to it, and further
that “an enlightenment as to its wrong and its right” (Qur’ān 91:8).
The word used for right is taqwa; the word used for wrong is fujur.
The term fujur is employed to describe those who live immorally:
Cowan, ed., The Hans Wehr Dictionary of Modern Written Arabic,
697.
62. Lane, Arabic English Lexicon, vol. 1 describes those possessing birr
as those who are good, kind, gentle, and obedient to their creator. For
Muslims in contemporary Western societies, issues of social justice
have appeared to taken a back seat as compared with issues such as
dress, rituals around hygiene, and ritual slaughter of food animals have
taken center stage in popular discussions.Nevertheless, issues such as
civil liberties also touch Muslim communities deeply. Muslims who
are arrested or charged gain very little help from the broader Muslim
community, about which many in the Australian Muslim community
are privately critical; it appears happy to abandon individuals to a
system about which they are privately critical, but simply to assert
well-rehearsed mantras on their own fidelity to the nation state and
that “Islam is a peaceful religion.” Muslims in majority states appear
to be much more focused on political, justice, and economic equity
issues, and issues such as dress appear never to be discussed, with
women in various degrees of cover taking part in the demonstrations
and rallies calling for change. It might be argued that participating
in the hijab debate compounds this problem. However, dress is only
one issue; I hope to promote debate on all important subjects using
the freedoms that Muslims enjoy in the West.
63. Qur’ān 2:177.
64. That is, facing Mecca from whichever direction, an allusion to the
Muslim direction of prayer in canonical worship.
65. Belief in the angels is common to all the surviving Abrahamic faiths.
In the Islamic tradition, angels are not possessed of free will. Note
that Satan in Islam is a djinn and not a fallen angel. See generally the
transcripts of ABC Radio National Program Encounter, November
5, 2006, www.abc.net.au/rn/encounter/stories/2006/1771984.htm.
66. Qur’ān 33:59.
67. See endnote reference number 54 above in the text.
68. All Australian states and territories, and the Commonwealth
constitute separate jurisdictions.
69. Australian Associated Press, “New burqa, niqab ID laws
unveiled in NSW,” March 5, 2012, http://news.ninemsn.com.au/
national/8429828/new-burqa-niqab-id-laws-unveiled-in-nsw.
70. Australian Associated Press, “Australian Judge orders witness to
remove niqab,” The Guardian, August 19, 2010.
71. Australian Associated Press, “New burqa, niqab ID laws unveiled in
NSW,” March 5, 2012.
72. Pursuant to s.171(4)(b) of the Criminal Procedure Act 2004 (WA),
a suppression order was issued by the presiding judge in relation to
these matters. As this order remains in force, release the requested
transcript will not be possible until the further order of the court.
74. Hassan, The Doctrine of Ijma’ in Islam, 28. Mamdouh Habib (with
Julia Collingwood) in My Story (Melbourne, Scribe, 2008), wrote
“the tale of a terrorist who wasn’t (20).”
75. Ahmad Hasan, “Al-Shafi’s Role in the Development of Islamic
Jurisprudence” in Islamic Law and Legal Theory, ed. Edge, 415.
76. Hassan, The Doctrine of Ijma’ in Islam, vi.
77. Hasan, “Al-Shafi’s Role in the Development of Islamic
Jurisprudence,” 414; Mohd. Hameedullah Khan, The Schools of
Islamic Jurisprudence: A Comparative Study, 2nd ed. (New Delhi,
India: Kitab Bhavan, 1997), 40.
78. Georges F Hourani, ‘The Basis of Authority of Consensus in Sunnite
Islam,” in Islamic Law and Legal Theory, ed. Edge, 155. Hunt Janin
and Andre Kahlmeyer, Islamic Law: The Sharia from Muhammad’s
Time to the Present (Jefferson, NC: McFarland, 2007), 20.
79. See text accompanying endnote reference number 21.
80. The meaning of “overwhelming majority” has not been judicially
determined; it must, however, mean that it excludes a simple majority,
and perhaps an overwhelming majority of the Muslims although
the overwhelming majority of a legal school might be acceptable
on certain less crucial issues. That is, as in the process of idjma’
formation, the opinion on an issue of an overwhelming majority of
Muslims in that locality should be considered the “correct opinion.”
81. Fatima Mernissi, Dreams of Trespass: Tales of a Harem Girlhood,

(Reading, MA: Addison-Wesley, 1994), 100.
82. Bilal Cleland, The Muslims in Australia: A Brief History (Melbourne,
Australia: ICV, 2001), 3.
83. Samantha Faulkner with Ali Drummond, Life B’long Ali Drummond:
A Life in the Torres Strait (Canberra, Australia: Aboriginal Studies
Press, 2007).
84. Stephenson, Islam Dreaming, 62.
85. Tariq Ramadan, Western Muslims and The Future of Islam (Oxford,
Oxford University Press, 2003).
86. It is unclear whether “regularly” in this context equates to the term full
time employed by Bullock, (a much less ambiguous term): Bullock,
Rethinking Muslim Women and the Veil , 236. While it is difficult to
be definitive, but one would expect, it appears anecdotally that the
take up of hijab among female converts appears to be significantly
higher than the general Muslim population. Other than problems
with their immediate non-Muslim families few, if any, have reported
any harassment in public. Source: an unpublished survey conducted
by the Australian Muslim Civil Rights Network. A common question
posed to Muslim converts generally appears to be “Why have you
joined these people?” and this provides an opportunity to engage
with curious and intelligent people.
87. Again, the uptake by Muslim convert women of the niqab appears to
be higher than that of the general Muslim population.
88. Abul ala Maududi, Islamic Law and Constitution, 11th ed. (Lahore,
Pakistan: Islamic Publications, 1992), 146.
89. Fatima Mernissi, Women and Islam: A Historical and Theological
Enquiry (Oxford, Blackwell, 1991), 96.
90. Ibid., 13.
91 See “Local Dress Customs” below.
92. The dependent sources of law include ijma (consensus), quyas
(analogy), urf (custom), and maslaha (public benefits).
93. Bullock cites this prophetic hadith as:
Abu Dawud has transmitted on the authority of A’isha [the Prophet’s
wife] [that] Asma’ the daughter of Abu Bakr [and A’isha’s sister], once
came up to the Prophet (peace be upon him) wearing transparent clothes.
The Prophet (peace be upon him) turned his face away from her and told
her, “Asma’, when a women begins to menstruate, nothing should be
seen of her except this and this,” and pointed to his face and hands.
Bullock, Rethinking Muslim Women and the Veil, 232.
94. See the “Definitions” on page 113.

95. Bullock, Rethinking Muslim Women and the Veil, 200. Clearly, the
covering material must also not be transparent:
wife] [that] Asma’ the daughter of Abu Bakr [and A’isha’s sister], once
came up to the Prophet (peace be upon him) wearing transparent clothes.
The Prophet (peace be upon him) turned his face away from her and told
her, “Asma’, when a women begins to menstruate, nothing should be
seen of her except this and this,” and pointed to his face and hands.
96. Qur’ān 24:31.
97. Muhammad Al-Mughirah al-Bukhari, The Translations of the
Meaning of Sahih al-Bukhari vol 7 (Chicago, Kazi, 1976), 454, 551.
98. Abu’l Hussain Muslim, Al Jami’us Sahih, 4 vols. (Beirut, Lebanon:
Far-al-Arabia, 1972).
99. Malik ibn-Anas, The Beaten Path Al-Muwatta’ (New Delhi, India:
Kitab Bhavan, 1979).
100. El-Fadl, Speaking in God’s Name, 224.
101. Malik ibn-Anas, The Beaten Path Al-Muwatta’ (New Delhi, India:
Kitab Bhavan, 1979), 382.
102. Ali persuasively argues that although the question of dress is not the
central issue of this date that it is nonetheless important to address
these issues and this paper defers to this opinion: Ali, Sexual Ethics
and Islam, xvii.
103. Qur’ān 24:31.
104. Qur’ān 4:23.
105. See:
wife] [that] Asma’ the daughter of Abu Bakr [and A’isha’s sister],
once came up to the Prophet (peace be upon him) wearing transparent
clothes. The Prophet (peace be upon him) turned his face away from
her and told her, “Asma’, when a women begins to menstruate,
nothing should be seen of her except this and this,” and pointed to
his face and hands.
If the hadith was taken literally, and the face and hands issue applied
to Asma, as being in the presence of a person to whom marriage
was not permitted; this would make the argument for niqab more
compelling. Such an interpretation is not supported in the literature
and is not supported in this paper.
106. Qur’ān 5:6.
107. UN Secretary-General’s Statement, December 1, 2000 (Press

Release No: SG/SM/7649OBV/188).
108. See generally S. Cotton, Silent Terror: A Journey in Contemporary
African Slavery (New York, Harlem River, 1999); K. Bales,
Disposable People: New Slavery in the Global Economy (Berkeley,
CA, University of California Press, 1999).
109. Qur’ān 4:25.
110. Qur’ān 24:30.
111. Qur’ān 24:31.
112. Qur’ān 109:6. The Qur’ān and Sunnah recognize many different
levels of faith in people, reserving its highest place for those who
exercise their free will without fear of hell or seeking rewards in
heaven but purely worshipping in an altruistic sense: Izzeddin Ibrahim
and Denys Johnson-Davies, Forty Hadith Qudsi (Beirut, Lebanon:
Dar-al-Koran, 1991), 65. Muslims are, however, urged to enter into
and to perform their covenantal obligations wholeheartedly: Qur’ān
2:208. This at minimum must mean that they do not intentionally
breach their uṣūl obligations: see discussion in Zubaida, Law and
Power in the Islamic .
113. Please refer to the hadith where the Prophet, notwithstanding his both
prophetic and familial authority over Asma, does not order change
but merely suggests what is appropriate. Even in a fairly extreme
case where the lady’s clothes were said to be quite transparent:
his face and hands.
114. Qur’ān 3:104 includes the relevant phrase, ya’muru na bil ma’ru
fi wa yanhauna ‘anil munkar (commanding right and forbidding
wrong). For an in-depth analysis of this command, please refer to
Michael Cook, Commanding Right and Forbidding Wrong in Islamic
Thought (Cambridge, UK: Cambridge University Press, 2001).
115. Qur’ān 24:30.
116. There is no implication that these decisions are formulated on
any particular knowledge base or under the discipline of legal
methodology. In fact, the general level of Islamic knowledge
in Australia could reasonably be classified as poor. Knowledge
of Islam is not a criterion for immigration to Australia so any
knowledge of Islam among immigrants is quite incidental. Few

Australian educational institutions of higher learning provide formal
training in Islamic studies and none in Islamic law. Hodjas (hocas)/
imams/prayer leaders at Sunni Muslim mosques are usually funded
and educated by overseas institutions such as Diyanet leri Bakani
in Turkey or the Medina University trained Saudi Arabian funded
hodjas /prayer leaders from various states. Many Saudi trained hodjas
are not fluent in either English or Turkish. Turkish trained hodjas are
usually fluent in both Turkish and English, but until recently, their
sermons or lectures, traversed very basic, primarily spiritual issues
that avoided the practical manifestations of faith and that arguably
fitted well into a secular society, the prevailing ideology in Turkey.
In Australia, Shīʻah Muslim mosques – which cater for about 40
percent of the Muslims in the large urban centers and growing with
the refugee flows from Iraq and Afghanistan, largely cater for Arabic
speaking Lebanese immigrants, a large Iraqi refuge population,
and a number of Persian Gulf Arab students who appear fearful to
return to Sunni ruled states, but whose sermons carry a very diverse
range of relevant and contemporary subjects, although not easily
accessible by the vast majority of Australian Muslims who are not
Arabic speaking.
117. Ayesha M Imam, “Muslim Religious Right (ʻFundamentalists’)
and Sexuality,” in Women and Sexuality in Muslim Societies, ed., P.
Ilkkaracan (Istanbul, Turkey, New Ways, 2000) 121, 129.
118. North Sea Continental Shelf Cases [Federal Republic Germany
v Denmark; Federal Republic Germany v Netherlands] [1969]
International Court of Justice Reports 3, 16.
119. See discussion associated with endnote reference number 81 above.
120. Bullock, Rethinking Muslim Women and the Veil, 85.
121. Qur’ān 24:31.
122. See text associated with endnote reference note number 40 above.
123. See text associated with endnote reference note number 54 above.
124. Ali, Sexual Ethics and Islam, xx.
125. Ibid..
126. Roberto Tottoli, Biblical Prophets in the Qur’an and Muslim
Literature (Richmond, UK: Curzon, 2002, 182.
127. Qur’ān 24:31 (emphasis added).
129. Asad, The Message of the Qur’ān, 538.
130. Qur’ān 2:67‒71.
131. Abdur-Rahman I Doi, Women in Shari’ah, 4th ed. (Kuala Lumpur,
Malaysia: A. S. Noordeen, 1992), 15; Bullock, Rethinking Muslim
Women and the Veil, 232, Bullock cites this prophetic hadith as:
his face and hands.
132. El-Fadl, Speaking in God’s Name, 143–44.
133. Laleh Bakhtiar, Encyclopedia of Islamic Law: A Compendium of the
Major Schools, Chicago, ABC, 1996), 76.
135. Bakhtiar, Encyclopaedia of Islamic Law, 76; See also Zamakshari’s
interpretation at text accompanying endnote reference number 131
above.
136. Ibid., 241.
137. Ayesha M Imam, “Muslim Religious Right (‘Fundamentalists’) and
Sexuality,” 121, 129.
138. Article 13(3) International Covenant on Economic, Social and
Cultural Rights Adopted and opened for signature, ratification and
accession by General Assembly resolution 2200A (XXI) December
16, 1966 entry into force January 3, 1976, in accordance with Article
27.
139. For example, Qur’ān 43:23, in which God rejects the argument of
people whose main defense was that they (uncritically) followed the
religion of their fathers.
140. C. Ward, “The A, B, Cs of Acculturation,” in David R Matsumoto,
ed. The Handbook of Culture and Psychology (New York: OUP,
2001), 411.
141. That is: Sharīʻah law, jurisprudence, and precedent.
142. Legal necessity, as it is posited in this paper does not reasonably
apply to Muslims as a class of persons in Australia
143. Lane, Arabic English Lexicon, vol. 1, 440.
144. Cowan, ed., The Hans Wehr Dictionary of Modern Written Arabic,
586.
145. Ibid., 989.
146. Lane, Arabic English Lexicon, vol. 1, 440.
147. Qur’ān 33:59.
149. Qur’ān 33:59.
150. Ibid.
151. The Arabic term dhalika adnaa, where the operative word adnaa
is here translated as “convenient,” but elsewhere as “conducive”
or sometimes as “something that brings near”: Cowan, ed., The
Hans Wehr Dictionary of Modern Written Arabic, 11. Nevertheless,
dhalika adnaa cannot in any event reasonably be construed as a
mandatory prescription.
152. Mernissi, The Veil and the Male Elite, 86.
153. ABC Australia TV, Geraldine Doogue, “COMPASS: CRONULLA
TO KOKODA,” July 8, 2007, http://www.abc.net.au/compass/
s1973902.htm.
154. Muhammad Hamidullah, Muslim Conduct of State, 3rd ed. (Lahore:
Pakistan, Sh. Mohammed Ashraf, 1953), 117; Anne Elizabeth
Mayer, Islam and Human Rights: Tradition and Politics (Boulder,
CO: Westview Press, 1999), 48.
156. The motivation for the use or otherwise of hijab by Australian
women has not been scientifically polled to date. Given, however,
the broad similarities between Canada and Australia, it is posited
that the women’s motivation is not likely to greatly different to those
examined by Bullock: Ibid., 50.
157. See the discussion above on the Shafi’ī’s position on the preferability
of the consensus of the masses as compared with the consensus of
the jurists alone.
158. Nu Ha Mim Keller, Reliance of the Traveller: A Classic Manual of
Islamic Sacred Law (Beltsville, MD: Amana, 1991), 321.
159. Al-Bukhari, The Translations of the Meaning of Sahih al-Bukhari,
vol. 7, 468.
160. Why Wear Niqab?” Muhajabah Magazine, March 7, 2008, www.
muhajabah.com/whyniqab.htm.
161. Mr. Sayed, the defendant, was the principal of an Islamic school,
the Muslim Ladies College, with which both the Muslim witness in
question and the defendant were closely associated.
163. Wadud, Inside the Gender Jihad, 19.
164. Jane Mulroney, Australian Statistics on Domestic Violence,
(Australian Domestic and Family Violence Clearinghouse), 3. www.
austdvclearinghouse.unsw.edu.au/PDF%20files/Statistics_final.pdf.
165. Elizabeth Broderick, “Not So Straightforward: Domestic Violence
in Australia,” The Alternative Law Journal 36, no.4 (2011): 224.
166. Mernissi, The Veil and the Male Elite; Mernissi, Islam and
Democracy: Fear of the Modern World (Cambridge, Perseus, 1992).

168. Ibid.
169. Ibid., 95.
170. Al-Bukhari, The Translations of the Meaning of Sahih al-Bukhari,
vol. 7, 454.
171. Qur’ān 2:143 – wa sa ta (midmost). Hassan, The Doctrine of Ijma’
in Islam, 40.

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The Position of the Niqab (the Face Veil)

in Australia under Australian

Asmi John Wood

The Sayed Case in the District Court of Western Australia

Muslims women. While they are both independent works,

The crucial longer-term disadvantage is that because Muslim immi-

women’s dress.3 This general Anglophone position can be contrasted with

ment and crystallization through local consensus of Sharīʻah personal law

a principled and systematic manner through a recognized process of ijti-

Interpretation of the Sharīʻah

ognized as a Muslim woman,66 but where poor or bigoted behavior can be

The Current Australian Legal Position on the Head Cover

overwhelming majority.80 It is noted anecdotally, that there is no clear or

Hijab in Australian Society

“Islamic Dress” Under Islamic law

What is “Modesty”? The Concept of Awra

Hijab in Islamic Law

operative in Australia other than where an individual voluntarily

broad consensus, has not appeared to have succeeded to date. In a similar

Local Dress Customs

Australian Dress Customs

the effects of the historical application of legal necessity,142 allows Muslim

Anecdotally, the view among a significant minority of practicing Aus-

Niqab in Islamic Law

Islam in Contemporary Australia

sonable because in addition to the undesirability in principle of uncritically

of conceit referred to certain forms of dress, and was addressed to men.

9. The Australian Constitution. Section 116.

deny God’s Attributes. He is not of the sufis who worship graves

The Lesser Evil Political Ethics in the Age of Terror (Princeton,

qualifier dependent as mentioned, signifies accordance with Islamic

University Press, 1972). Adat is customary Malay law. Mohd Daud

81. Fatima Mernissi, Dreams of Trespass: Tales of a Harem Girlhood,

94. See the “Definitions” on page 113.

107. UN Secretary-General’s Statement, December 1, 2000 (Press

knowledge of Islam among immigrants is quite incidental. Few

167. Bullock, Rethinking Muslim Women and the Veil, 136.

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